R v Little - [2013] QCA 223

SUPREME COURT OF QUEENSLAND

CITATION:

R v Little [2013] QCA 223

PARTIES:

R
v
LITTLE, Russell Selwyn
(appellant)

FILE NO/S:

CA No 164 of 2012
DC No 196 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

Orders delivered ex tempore 16 July 2013
Reasons delivered 16 August 2013

DELIVERED AT:

Brisbane

HEARING DATE:

16 July 2013

JUDGES:

Margaret McMurdo P and Fraser JA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Delivered ex tempore on 16 July 2013:

The appeal is allowed.1.

The convictions are quashed.2.

A re-trial is ordered.3.

The Court will publish its reasons later.4.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the appellant was convicted of two counts of attempted carnal knowledge of an intellectually impaired person and two counts of indecent dealing with an intellectually impaired person – where the complainant was declared a special witness and gave pre-recorded evidence in the presence of a support person pursuant to s 21A Evidence Act 1977 (Qld) – where the trial judge failed to give the mandatory warning about the presence of a support person required by s 21A(8) Evidence Act – whether miscarriage of justice occurred

Criminal Code 1899 (Qld), s 216(4)(b), s 668E(1A)
Criminal Law (Sexual Offences) Act 1978 (Qld), s 5(1)(f)

Evidence Act 1977 (Qld), s 21A(1), s 21A(2), s 21A(8), s 93A

R v BCL[2013] QCA 108, cited
R v Libke[2006] QCA 242, cited
R v Michael (2008) 181 A Crim R 490; [2008] QCA 33, cited
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, cited

COUNSEL:

The appellant appeared on his own behalf
T A Fuller QC for the respondent

SOLICITORS:

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

MARGARET McMURDO P: The appellant was charged with two counts of rape (counts 1 and 4), alternatively carnal knowledge of an intellectually impaired person (counts 2 and 5); and two counts of indecent dealing with an intellectually impaired person (counts 3 and 6). The judge left for the jury's consideration the further uncharged alternative counts to counts 2 and 5 of attempted carnal knowledge of an intellectually impaired person. All alleged offences were charged as occurring in December 2006. On 7 June 2012 after a four day trial, the jury found him not guilty on the counts of rape and carnal knowledge of an intellectually impaired person, but guilty of the uncharged alternatives to counts 2 and 5, attempted carnal knowledge of an intellectually impaired person, and the counts of indecent dealing. On 20 June 2012, he was sentenced to three years and seven months concurrent imprisonment for each count of attempted carnal knowledge and 12 months concurrent imprisonment for each count of…

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 Little

Details

AGLC: R v Little [2013] QCA 223
Case: [2013] QCA 223
Decision Date: 16 July 2013

CaseChat Overview and Summary

Little appealed his convictions for two counts of attempted carnal knowledge of an intellectually impaired person and two counts of indecent dealing with an intellectually impaired person. The case was heard and determined by the Queensland Court of Appeal. The appellant was tried in the District Court of Queensland, where he was found guilty by a jury. The core issue before the court was whether the appellant's conviction constituted a miscarriage of justice due to the trial judge's failure to provide the mandatory warning about the presence of a support person during the complainant's testimony, as required by section 21A(8) of the Evidence Act 1977 (Qld).

The court was required to determine whether the failure to give the statutory warning constituted a non-direction that amounted to a miscarriage of justice. The appellant's counsel argued that the omission was a significant error as it deprived the jury of a critical piece of information that could have influenced their assessment of the complainant's credibility. The prosecution maintained that the error was not significant enough to warrant a new trial. The court considered the nature and extent of the non-direction, the overall fairness of the trial, and whether the error could have affected the jury's decision-making process. Ultimately, the court concluded that the omission of the mandatory warning was a substantial procedural error that led to a miscarriage of justice.

The Court of Appeal found that the appellant's convictions were quashed due to the significant procedural error in the trial. The court held that the omission of the statutory warning about the support person's presence was a substantial procedural defect that could have affected the jury's evaluation of the complainant's testimony. Consequently, the appeal was allowed, and the convictions were quashed. The court ordered a re-trial, and it was specified that reasons for the decision would be published at a later date.

Orders

Orders of the court

Delivered ex tempore on 16 July 2013:

The appeal is allowed.1.

The convictions are quashed.2.

A re-trial is ordered.3.

The Court will publish its reasons later.4.

Background

Background to the litigation

Full text does not contain this section.

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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CITATION:	R v Little [2013] QCA 223
PARTIES:	R v LITTLE, Russell Selwyn (appellant)
FILE NO/S:	CA No 164 of 2012 DC No 196 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	Orders delivered ex tempore 16 July 2013 Reasons delivered 16 August 2013
DELIVERED AT:	Brisbane
HEARING DATE:	16 July 2013
JUDGES:	Margaret McMurdo P and Fraser JA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Delivered ex tempore on 16 July 2013: The appeal is allowed.1. The convictions are quashed.2. A re-trial is ordered.3. The Court will publish its reasons later.4.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the appellant was convicted of two counts of attempted carnal knowledge of an intellectually impaired person and two counts of indecent dealing with an intellectually impaired person – where the complainant was declared a special witness and gave pre-recorded evidence in the presence of a support person pursuant to s 21A Evidence Act 1977 (Qld) – where the trial judge failed to give the mandatory warning about the presence of a support person required by s 21A(8) Evidence Act – whether miscarriage of justice occurred Criminal Code 1899 (Qld), s 216(4)(b), s 668E(1A) Criminal Law (Sexual Offences) Act 1978 (Qld), s 5(1)(f) Evidence Act 1977 (Qld), s 21A(1), s 21A(2), s 21A(8), s 93A R v BCL[2013] QCA 108, cited R v Libke[2006] QCA 242, cited R v Michael (2008) 181 A Crim R 490; [2008] QCA 33, cited Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, cited
COUNSEL:	The appellant appeared on his own behalf T A Fuller QC for the respondent
SOLICITORS:	The appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent