R v JW - [2015] QCA 31

SUPREME COURT OF QUEENSLAND

CITATION:

R v JW [2015] QCA 31

PARTIES:

R
v
JW
(appellant)

FILE NO/S:

CA No 173 of 2014
DC No 1408 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

10 March 2015

DELIVERED AT:

Brisbane

HEARING DATE:

10 February 2015

JUDGES:

Holmes, Fraser and Philippides JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The appeal against conviction is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant was convicted of three counts of indecent treatment and one count of attempted rape of his grandson – where the complainant was under 12 years and was to the appellant’s knowledge his lineal descendant – where the complainant gave evidence of a remark his mother made to the appellant as to her expectation of his misconduct and of the latter’s response – where the evidence was ruled admissible as capable of amounting to an implied admission – whether the evidence was wrongly admitted

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE – APPLICATION OF PROVISO TO PARTICULAR CASES – where the appellant was convicted of three counts of indecent treatment and one count of attempted rape of his grandson – where the complainant was under 12 years and was to the appellant’s knowledge his lineal descendant – where evidence prejudicial to the appellant was wrongly admitted – whether there was a substantial miscarriage of justice – whether the court should exercise its power under s 668E(1A) of the Criminal Code (Qld) to dismiss the appeal

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted of three counts of indecent treatment and one count of attempted rape of his grandson – where the complainant was under 12 years and was to the appellant’s knowledge his lineal descendant – where the appellant argued that the complainant’s evidence was unreliable and that there were inconsistencies between his account and preliminary complaint evidence – where the appellant argued that there was inconsistency in the evidence of the complainant’s mother as to an uncharged act – whether the verdicts were unreasonable

Criminal Code (Qld), s 668E(1A)

Lee v The Queen (2014) 88 ALJR 656; (2014) 308 ALR 252; [2014] HCA 20, cited
Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, cited
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, applied
WGC v The Queen (2007) 233 CLR 66; [2007] HCA 58, cited

COUNSEL:

The appellant appeared on his own behalf
S J Farnden for the respondent

SOLICITORS:

The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

HOLMES JA: The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v JW

Details

AGLC: R v JW [2015] QCA 31
Case: [2015] QCA 31
Decision Date: 10 March 2015

CaseChat Overview and Summary

In the case of R v JW, the appellant, JW, appealed against his conviction on three counts of indecent treatment and one count of attempted rape of his grandson. The appeal was brought before the court of appeal which had to decide several key legal issues. Firstly, the court had to determine whether the trial judge erred in admitting evidence that the complainant's mother had made a remark to the appellant regarding her expectation of his misconduct and his response. The court had to assess the admissibility of this evidence under the principles of implied admissions. Secondly, the court examined whether the admission of this evidence amounted to a miscarriage of justice warranting the dismissal of the appeal under the proviso to particular cases. Thirdly, the court considered whether the verdicts were unreasonable or incapable of being supported by the evidence, given the appellant's contentions regarding the reliability of the complainant's evidence and inconsistencies in the testimonies.

The court of appeal found that the evidence in question was indeed capable of amounting to an implied admission and was correctly admitted. However, the court also acknowledged that the admission of this evidence was erroneous. Despite this error, the court determined that it did not result in a substantial miscarriage of justice that would necessitate the dismissal of the appeal under the specific provision. Furthermore, the court found that the verdicts, while influenced by the prejudicial evidence, were not unreasonable or incapable of being supported by the evidence when considering the totality of the evidence presented. The court concluded that the errors did not undermine the overall reliability of the verdicts.

The appeal against the conviction was dismissed, and the original conviction was upheld. The court did not find that the prejudicial evidence was so significant as to warrant a new trial or the dismissal of the appeal under the particular provision. The reliability of the complainant's evidence and the consistency of the testimonies, when viewed in the context of all the evidence, supported the verdicts reached by the trial court.

Orders

Orders of the court

The appeal against conviction is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v JW [2015] QCA 31
PARTIES:	R v JW (appellant)
FILE NO/S:	CA No 173 of 2014 DC No 1408 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	10 March 2015
DELIVERED AT:	Brisbane
HEARING DATE:	10 February 2015
JUDGES:	Holmes, Fraser and Philippides JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The appeal against conviction is dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant was convicted of three counts of indecent treatment and one count of attempted rape of his grandson – where the complainant was under 12 years and was to the appellant’s knowledge his lineal descendant – where the complainant gave evidence of a remark his mother made to the appellant as to her expectation of his misconduct and of the latter’s response – where the evidence was ruled admissible as capable of amounting to an implied admission – whether the evidence was wrongly admitted CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE – APPLICATION OF PROVISO TO PARTICULAR CASES – where the appellant was convicted of three counts of indecent treatment and one count of attempted rape of his grandson – where the complainant was under 12 years and was to the appellant’s knowledge his lineal descendant – where evidence prejudicial to the appellant was wrongly admitted – whether there was a substantial miscarriage of justice – whether the court should exercise its power under s 668E(1A) of the Criminal Code (Qld) to dismiss the appeal CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted of three counts of indecent treatment and one count of attempted rape of his grandson – where the complainant was under 12 years and was to the appellant’s knowledge his lineal descendant – where the appellant argued that the complainant’s evidence was unreliable and that there were inconsistencies between his account and preliminary complaint evidence – where the appellant argued that there was inconsistency in the evidence of the complainant’s mother as to an uncharged act – whether the verdicts were unreasonable Criminal Code (Qld), s 668E(1A) Lee v The Queen (2014) 88 ALJR 656; (2014) 308 ALR 252; [2014] HCA 20, cited Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, cited Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, applied WGC v The Queen (2007) 233 CLR 66; [2007] HCA 58, cited
COUNSEL:	The appellant appeared on his own behalf S J Farnden for the respondent
SOLICITORS:	The appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent