R v LSS

Case [1998] QCA 303 2 October 1998

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IN THE COURT OF APPEAL [1998] QCA 303

SUPREME COURT OF QUEENSLAND

C.A. No. 128 of 1998

Brisbane

[R v. LSS]

THE QUEEN

v.

LSS
(Applicant) Appellant

Pincus JA

Thomas JA

Ambrose J

Judgment delivered 2 October 1998

Separate reasons for judgment of each member of the Court; each concurring as to the orders made.

APPEAL AGAINST CONVICTION ALLOWED. CONVICTIONS ON COUNTS 1 - 11 INCLUSIVE QUASHED. JUDGMENT AND VERDICT OF ACQUITTAL ON COUNTS 3, 4 AND 5 ENTERED. NEW TRIAL ORDERED ON COUNTS 1, 2, 6 - 11 INCLUSIVE.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS: EVIDENCE - Sexual offences - recent complaint - requirement of recency of complaint - need for judicial direction on limited use of fresh complaint evidence.

Whether evidence of “coaching” of complainant admissible - finality and collateral evidence rule - exception in favour of evidence of bias or partiality in a witness.

Evidence of uncharged acts - warning necessary where evidence of uncharged acts (not properly receivable as propensity or similar fact evidence) presents risk that jury may identify a propensity to commit a charged offence.

BRS v The Queen (1997) 71 ALJR 1512
Gipp v R (1998) 155 ALR 15
R v K (CA 64 of 1998, 23 June 1998)
Pfennig v The Queen (1995) 182 CLR 461
Suresh v The Queen (1998) 72 ALJR 769
Jones v The Queen (1997) 71 ALJR 538
Kilby v The Queen (1973) 129 CLR 460
R v Umanski [1961] VR 242.

Counsel: Mr P. Callaghan for the appellant
Mr B. Campbell for the respondent

Solicitors: Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

Hearing Date: 1 September 1998

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 2 October 1998

I have read and, subject to the observations which follow, agree with the reasons of Thomas J.A. His Honour refers to the decision of the High Court in Jones (1997) 71 A.L.J.R. 538, which appears to me to throw doubt upon the proposition that evidence of recent complaint may buttress the credit of the complainant, where the charge is one of a sexual offence: Kilby (1973) 129 C.L.R. 460 at 472. In Jones, in discussing whether the absence of a proper direction as to the use of evidence of recent complaint necessitated an order for a new trial, the Court remarked:
"Unless explained, the evidence might well have played an important part in the jury’s assessment of credibility".

Since it is clear that such evidence cannot be used in proof of the Crown case, the only possible basis for its admission is credit. The sentence I have quoted from Jones should not, in my respectful opinion, be treated as authority that evidence of recent complaint may not be used in assessing credit.

Under the heading "Evidence of Uncharged Acts", Thomas J.A. refers to the decision in Gipp (1998) 194 C.L.R. 106. As is mentioned by Thomas J.A., I discussed that case in K (C.A. No. 64 of 1998,…

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 LSS

Details

AGLC: R v LSS [1998] QCA 303
Case: [1998] QCA 303
Decision Date: 2 October 1998

CaseChat Overview and Summary

In the case of R v LSS, the appellant, LSS, was convicted on various counts of sexual offences, with counts 1 to 11 inclusive being upheld, while counts 3, 4 and 5 were acquitted. The appellant appealed against his convictions, challenging the admissibility and weight given to certain evidence during the trial, as well as the adequacy of the trial judge's directions to the jury regarding the evidence. The High Court of Australia was tasked with determining the legal issues surrounding the admissibility of the evidence and the appropriateness of the trial judge's directions.

The primary legal issues before the court were whether the evidence of a recent complaint was admissible, and if so, whether the trial judge had adequately directed the jury on its limited use. Additionally, the court had to consider the admissibility of evidence regarding the complainant's alleged "coaching" and the necessity of a warning to the jury about the potential prejudicial effect of this evidence. Furthermore, the court needed to assess whether the trial judge had appropriately warned the jury about the risk of identifying a propensity to commit the charged offence when considering evidence of uncharged acts.

The court held that the evidence of the recent complaint was admissible, but the trial judge had not sufficiently directed the jury on its limited use. This failure to provide appropriate direction led to an unfair prejudice against the appellant. Furthermore, the court found that the evidence of "coaching" was admissible as it fell within the exception for evidence of bias or partiality in a witness. However, the trial judge had not warned the jury about the risk that this evidence might be used to infer a propensity to commit the charged offence. The court also found that the trial judge had not adequately warned the jury about the potential prejudicial effect of evidence of uncharged acts. These errors led to a miscarriage of justice, and the appeal against the convictions on counts 1 to 11 was allowed, with the convictions being quashed and a new trial ordered.

In conclusion, the High Court allowed the appeal against the convictions on counts 1 to 11, quashed those convictions, and entered a judgment and verdict of acquittal on counts 3, 4 and 5. A new trial was ordered on counts 1, 2, 6 to 11 inclusive. The application for leave to appeal against the sentence was refused.

Orders

Orders of the court

APPEAL AGAINST CONVICTION ALLOWED. CONVICTIONS ON COUNTS 1 - 11 INCLUSIVE QUASHED. JUDGMENT AND VERDICT OF ACQUITTAL ON COUNTS 3, 4 AND 5 ENTERED. NEW TRIAL ORDERED ON COUNTS 1, 2, 6 - 11 INCLUSIVE. APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

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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Citations

R v LSS [1998] QCA 303

Most Recent Citation

R v M [2000] QCA 20

Cases Citing This Decision

R v TRKJ (No. 2) [2023] QDC 231
Citation 1 (Para 27)

…een in a different light. [71] Kilby v R (1973) 129 CLR 460. [72] Evidence (Protection of Children) Amendment Act 2003 (Qld), section 40. [73][1998] QCA 303; [2000] 1 Qd R 546, [11].…
R v VN [2023] QCA 184
Citation 2

…6 ALJR 78; [2021] HCA 44, cited R v Agnew [2021] QCA 190 , cited R v KBC [2023] QCA 60 , cited R v LSS [2000] 1 Qd R 546; [1998] QCA 303 , cited R v Paddon [1999] 2 Qd R 387; [1998] QCA 248 , cited R v RH [2005] 1 Qd R 180; [2004] QCA 225 , cited R v SDT (2022) 11 QR 556; [2022] QCA 159 , cited R v SEC [2023] QCA…
R v KBC [2023] QCA 60
Citation 3

…; [1994] HCA 63, followed Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, considered R v LSS [2000] 1 Qd R 546; [1998] QCA 303, cited R v Miller (2021) 8 QR 221; [2021] QCA 126, considered R v PS [2004] QCA 347, cited COUNSEL: M J Copley KC, with M Black, for the appellant D Kovac for the respondent SOLICITOR…
Rhu v The State of Western Australia [No 2] [2023] WASCA 49
Citation 4 (Para 5)

…been coached. In contrast, the evidence of HW was not evidence that IW had been coached.[109] [106] R v Phillips (1936) 26 Cr App R 17. [107] R v LSS [1998] QCA 303; [2000] 1 Qd R 546. [108] R v BBQ [2009] QCA 166; (2009) 196 A Crim R 173. [109] Respondent's answer [26] - [28]; WAB 37 - 39.…
R v DBV [2021] QCA 227
Citation 5 (Para 12)

…onduct, the evidence having itself no probative value or capacity to prove the truth in what is said (or written).” [21][2000] 1 Qd R 546 at 551; [1998] QCA 303 at [19].…
R v Bryce [2021] QCA 145
Citation 6 (Para 15)

…city to prove the truth in what is said (or written).”[3] [1] Criminal Law (Sexual Offences) Act 1978 (Qld) s 4A(1). [2][2000] 1 Qd R 546 at 551; [1998] QCA 303 at [19]. [3]See also R v RH [2005] 1 Qd R 180 at [12].…
R v Fax [2020] QChC 30
Citation 7 (Para 18)

…nce may support or attenuate the credit of the complainant depending on whether it is consistent or inconsistent.[11] [10] R v LSS [2000] 1 Qd R 546; [1998] QCA 303 at [1] and [19]. [11] R v RH [2005] 1 Qd R 180 at [23].…
R v Ruj [2020] QDC 198
Citation 8 (Para 1)

…ontains some inconsistencies.[160] I have scrutinised the complainant’s evidence in light of these inconsistences. [158] R v LSS [2000] 1 Qd R 546; [1998] QCA 303 at [1] and [19]. [159] R v RH [2005] 1 Qd R 180 at [23]. [160] These inconsistences are set out in paragraphs [49] to [58] of MFI “B” – Defence Submiss…
R v TCJ [2020] QDC 120
Citation 9 (Para 1)

…this evidence may support the credit of the complainant depending on whether it is consistent or inconsistent.[41] [40] R v LSS [2000] 1 Qd R 546; [1998] QCA 303 at [1] and [19]. [41] R v RH [2005] 1 Qd R 180 at [23].…
R v MMH [2020] QDC 70
Citation 10 (Para 1)

…dence may support or attenuate the credit of the complainant depending on whether it is consistent or inconsistent.[9] [8] R v LSS [2000] 1 Qd R 546; [1998] QCA 303 at [1] and [19]. [9] R v RH [2005] 1 Qd R 180 at [23].…
R v RBA [2018] QCA 338
Citation 11

…A 152, cited R v Foster [2014] QCA 226, cited R v GS [2005] QCA 376, cited R v LSS [2000] 1 Qd R 546; [1998] QCA 303 , cited R v McDougall [1983] 1 Qd R 89, cited R v NM [2013] 1 Qd R 374; [2012] QCA 173, cited R v PAS [2014] QCA 289, cited R v RH [2005] 1 Qd R 180; [2004] QCA 225, cited R v Roissetter [1984] 1 Q…
R v DU [2018] ACTSC 281
Citation 12 (Para 1)

…A similar approach does not appear to have always been taken in other jurisdictions. In R v LSS [1998] QCA 303; (2000) 1 Qd R 546, the Queensland Court of Appeal made no adverse comment to the appellant having been charged with 10 individual sexual offences against the complainant, and one offence of maintaining…
R v DBA [2012] QCA 49
Citation 13

…s 32C(a) Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A Evidence Act 1977 (Qld), s 21AK, s 93A R v LSS [2000] 1 Qd R 546; [1998] QCA 303, considered R v RH [2005] 1 Qd R 180; [2004] QCA 225, considered R v Riera [2011] QCA 77, considered Suresh v The Queen (1998) 72 ALJR 769; [1998] HCA 23, considered COUNS…
R v BBQ [2009] QCA 166
Citation 14

…17, considered R v LSS [2000] 1 Qd R 546; [1998] QCA 303, cited R v NE [2004] 2 Qd R 328; [2003] QCA 574, considered R v ON [2009] QCA 62, considered R v S [1999] 2 Qd R 89; [1998] QCA 71, cited R v Sheppard [2005] QCA 235, considered TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, cited COUNSEL: The appellan…
R v Rutherford [2004] QCA 481
Citation 15 (Para 1)

…int has been made may show consistency of the complainant’s conduct and thereby buttress her credit ( Kilby v The Queen (1973) 129 CLR 460; R v LSS [1998] QCA 303). Inclusion of the words “in the circumstances here” by the very experienced trial judge in juxtaposition to the reference to the concept of buttressin…
R v Lawrence [2001] QCA 441
Citation 16

…3 A Crim R 1, considered R v Lowrie & Ross [2000] QCA 405; CA Nos 95 and 92 of 2000, 3 October 2000, considered R v LSS [1998] QCA 303, CA No 128 of 1998, 2 October 1998, considered R v Phillips (1936) 26 Cr App R 17, considered Smith v The Queen (1993) 9 WAR 99, distinguished Urban Transport Authority of NSW v N…
R v York [2001] QCA 408
Citation 17

…[1962] Qd R 49, considered R v Rankin [2000] QCA 54; CA No 322, 3 March 2000, considered R v LSS [1998] QCA 303; CA No 128 of 1998, 2 October 1998, considered R v Self [2001] QCA 338; CA No 77 of 2001, 24 August 2001, considered…
R v D'Arcy [2001] QCA 325
Citation 18 (Para 1)

…lso directed the jury that they could only use the evidence of relationship if they were satisfied of its truth beyond reasonable doubt. [19] R v LSS [1998] QCA 303; CA No 128 of 1998, 2 October 1998, [30]-[33].…
R v Baker [2001] QCA 326
Citation 19 (Para 1)

…9. [14] [1996] 1 Qd R 573. [15] (1996) 186 CLR 427. [16] (1997) 71 ALJR 538. [17] (1997) 191 CLR 439. [18] (1998) 72 ALJR 769. [19] [1998] QCA 303. [20] (2000) 109 A Crim R 530. [21] [2000] QCA 520, CA No 118 of 2000, 19 December 2000. [22] R v Davies (1985) 3 NSWLR 276, 278.…
R v Noble [2000] QCA 523
Citation 20

…d Freeman [1980] VR 1, considered Gipp (1998) 72 ALJR 1012, considered Godinho (1911) 7 Crim App R 12, approved LSS [1998] QCA 303; CA No 128 of 1998, 2 October 1998, cited M (1994) 181 CLR 487, mentioned Suresh (1998) 153 ALR 145, mentioned US v Castro 813 F 2d 571 (1987), mentioned COUNSEL: A F Maher for the ap…
R v Kenward [2000] QCA 482
Citation 21 (Para 1)

…ect of that decision is a little unclear. I adhere to what was said about it in Knuth (CA No 64 of 1998, 23 June 1998), as quoted by Thomas JA in LSS [1998] QCA 303; CA No 128 of 1998, 2 October 1998 par 31.…
R v Lowrie & Ross [2000] QCA 405
Citation 22 (Para 1)

…11] At the same time the importance of finality of a witness' answers on credit and the need to identify a recognised exception was acknowledged. [10][1998] QCA 303, CA No 128 of 1998, 2 October 1998 paras [20]-[27]. [11]cf Palmer v The Queen (1998) 193 CLR 1, 21 per McHugh J; Cross on Evidence (Australian Editio…
R v M [2000] QCA 20
Citation 23 (Para 1)

…at 444 – 445; Suresh v R (1998) 153 ALR 145 at [4]; Warner at 385, 386. I agree, with respect, with the criticism by Pincus JA in R v Schneider [1998] QCA 303; CA No 128 of 1998, 2 October 1998, of the statement made in the joint judgment of the High Court in Jones v The Queen (1997) 71 ALJR 538 at 539.…

See all citing cases →

Cases Cited

Suresh v The Queen [1998] HCA 23
Citation 1

…he Queen (1997) 71 ALJR 1512 Gipp v R (1998) 155 ALR 15 R v K (CA 64 of 1998, 23 June 1998) Pfennig v The Queen (1995) 182 CLR 461 Suresh v The Queen (1998) 72 ALJR 769 Jones v The Queen (1997) 71 ALJR 538 Kilby v The Queen (1973) 129 CLR 460 R v Umanski [1961] VR 242.…
BRS v The Queen [1997] HCA 47
Citation 2

…BRS v The Queen (1997) 71 ALJR 1512 Gipp v R (1998) 155 ALR 15 R v K (CA 64 of 1998, 23 June 1998) Pfennig v The Queen (1995) 182 CLR 461 Suresh v The Queen (1998) 72 ALJR 769 Jones v The Queen (1997) 71 ALJR 538 Kilby v The Queen (1973) 129 CLR 460 R v Umanski [1961] VR 242.…
Jones v The Queen [1997] HCA 12
Citation 3

…ALJR 1512 Gipp v R (1998) 155 ALR 15 R v K (CA 64 of 1998, 23 June 1998) Pfennig v The Queen (1995) 182 CLR 461 Suresh v The Queen (1998) 72 ALJR 769 Jones v The Queen (1997) 71 ALJR 538 Kilby v The Queen (1973) 129 CLR 460 R v Umanski [1961] VR 242.…
Pfennig v the Queen [1995] HCA 7
Citation 4

…BRS v The Queen (1997) 71 ALJR 1512 Gipp v R (1998) 155 ALR 15 R v K (CA 64 of 1998, 23 June 1998) Pfennig v The Queen (1995) 182 CLR 461 Suresh v The Queen (1998) 72 ALJR 769 Jones v The Queen (1997) 71 ALJR 538 Kilby v The Queen (1973) 129 CLR 460 R v Umanski [1961] VR 242.…
Kilby v The Queen [1973] HCA 30
Citation 5

…98, 23 June 1998) Pfennig v The Queen (1995) 182 CLR 461 Suresh v The Queen (1998) 72 ALJR 769 Jones v The Queen (1997) 71 ALJR 538 Kilby v The Queen (1973) 129 CLR 460 R v Umanski [1961] VR 242.…
Gipp v the Queen [1998] HCA 21
Citation 6

…BRS v The Queen (1997) 71 ALJR 1512 Gipp v R (1998) 155 ALR 15 R v K (CA 64 of 1998, 23 June 1998) Pfennig v The Queen (1995) 182 CLR 461 Suresh v The Queen (1998) 72 ALJR 769 Jones v The Queen (1997) 71 ALJR 538 Kilby v The Queen (1973) 129 CLR 460 R v Umanski [1961] VR 242.…

Legislation Cited

Criminal Law (Sexual Offences) Act 1978 (Qld)
1 mention