R v Link - [1992] QCA 127

IN THE COURT OF APPEAL [1992] QCA 127

SUPREME COURT OF QUEENSLAND

C.A. No. 28 of 1992

THE QUEEN

(Appellant)

JUDGMENT - PINCUS J.A.

Delivered the Second day of June 1992

I have read the reasons of the Chief Justice and McPherson J.A. and adopt their Honours' statement of the basic facts of the case. I am enabled, by taking this course, to be more brief than would otherwise be necessary.
It is said in the majority reasons that K’s distressed condition on 6 October 1990 was admitted in evidence as capable of corroborating her account of the alleged offence. What the judge had to say on this subject was fairly lengthy but I think innocuous. His Honour explained the nature of corroboration and added that:
"K is the sole source of the evidence that the accused did that which is alleged. Her evidence is not corroborated unless there is firstly other evidence before you of a certain quality. The quality that that evidence must have is, first, that it is from a source separate and apart from and independent of K. Next, that it of its own strength confirms or tends to confirm that the offence charged was committed and by the accused".

His Honour then referred to the evidence of distress, made some adverse remarks of a general kind about the evidence of children and the reliability of complaints of sexual offences and returned to the subject of corroboration. He said, speaking of the evidence of distress:
"So that evidence cannot possibly be corroborative unless you are satisfied, on the evidence as a fact, that the distress exhibited, if there was any exhibited, which is also a fact for you, originated not from K’s will but involuntarily, so that it can truly be said to be from a source independent of K.
Next, if you are satisfied about that, in order for the evidence to have any hope to be of corroborative quality, you must be satisfied that the cause for that distress was the accused's alleged offence and the fear which that originated, to induce that distress to the exclusion of other causes for the distress. Thirdly, you must be satisfied that that evidence of distress is probative of the accused having committed the offence alleged, that the offence was committed by the accused".

His Honour went on to say, in effect, that unless the jury were able to infer that the only cause for that distress, if there was any, was that the accused had committed the offence, they could not conclude that the girl's evidence was corroborated.

I cannot see how the Crown could have got any help from this. The argument the judge suggested was, with respect, circular. The jury could not have been satisfied that the distress was caused by the accused having committed the offence unless they were first satisfied that the accused had in fact committed the offence. Yet the supposed purpose of the corroboration was to help to…

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 Link

Details

AGLC: R v L [1992] QCA 127
Case: [1992] QCA 127
Decision Date: 2 June 1992

CaseChat Overview and Summary

The case of R v Link involved the appellant who was convicted of indecent dealing with a child. The appellant contested the conviction, arguing that evidence of the complainant's distressed condition was improperly admitted as corroboration. The central issue was whether the complainant's condition, which was observed eight months after the alleged offence, was relevant and whether there was a causal connection between the condition and the offence. Additionally, the appellant questioned whether there was an alternative explanation for the complainant's condition.

The court examined the nature of the evidence presented, the timing of the observations, and whether there was a direct link between the complainant's condition and the alleged offence. The court found that the evidence of the complainant's condition was not admissible as corroboration due to the lack of a clear causal connection and the presence of a possible alternative explanation for the condition. The court also highlighted the importance of ensuring that evidence used for corroboration purposes meets stringent criteria, particularly in cases involving vulnerable complainants.

Consequently, the court determined that the evidence in question should not have been admitted as corroboration, leading to the conclusion that the conviction could not stand. The appeal against the conviction was allowed, and the court ordered a retrial. The appeal against the conviction was dismissed, leaving the conviction intact but mandating a new trial to address the issues identified in the appeal.

Orders

Orders of the court

The appeal against conviction is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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