R v M - [2004] QCA 184

SUPREME COURT OF QUEENSLAND

CITATION:

R v M [2004] QCA 184

PARTIES:

R
v
M
(appellant)

FILE NO/S:

CA No 346 of 2003
DC No 2370 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

28 May 2004

DELIVERED AT:

Brisbane

HEARING DATE:

26 March 2004

JUDGES:

Davies and Jerrard JJA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Amend count 6 in the indictment to read relevantly:
"That on a date unknown between the first day of January, 1990 and the thirty-first day of July, 1990 at Ipswich and Brisbane in the State of Queensland, M accused PM of committing indictable offences, namely unlawful carnal knowledge of a girl under the age of sixteen and indecent assault, with intent to gain the services of PM which M falsely pretended were those as an informant and undercover operative for M and to obtain the payment of a sum of money to M.”

2. Appeal against conviction dismissed

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL - PARTICULAR GROUNDS – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where evidence of uncharged acts admitted at trial – whether learned trial judge erred in allowing evidence – basis for admission of evidence of uncharged acts - whether evidence relevant to and probative of the commission of the offences charged

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL - PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – whether jury misdirected as to the use that could be made of evidence of uncharged acts

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – INFORMATION, INDICTMENT OR PRESENTMENT – AMENDMENT – TIME FOR AMENDMENT – amendment of indictment after conviction and on appeal – whether appellant would suffer injustice as result of amendment

Criminal Code 1899 (Qld), s 416, s 427(1)

Gilbert v R (2000) 201 CLR 411; 170 ALR 88, cited
KRM v R (2001) 206 CLR 221;178 ALR 385; 75 ALJR 550, cited
R v A [2000] QCA 520; CA No 118 of 2000, 19 December 2000, considered

COUNSEL:

D C Shepherd for the appellant
D L Meredith, with R Swanwick, for the respondent

SOLICITORS:

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

DAVIES JA: I have had the advantage of reading the reasons for judgment of Jerrard JA. Other than in respect of count 6, I agree with his Honour, for the reasons which he gives, that the appeal against all of the verdicts on all counts on which the appellant was convicted should be dismissed. The question whether the conviction on count 6 may be sustained is a more difficult question. In what follows I gratefully adopt his Honour's statement of the relevant facts, especially those with respect to count…

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 M

Details

AGLC: R v M [2004] QCA 184
Case: [2004] QCA 184
Decision Date: 28 May 2004

CaseChat Overview and Summary

The appeal in this matter was brought forth by M, who sought to challenge their conviction on various charges. The case revolved around the admission of evidence of uncharged acts during the trial and whether the jury was properly directed on how to consider such evidence. The appeal was heard in the relevant appellate court. M argued that the evidence of uncharged acts was improperly admitted and that the jury was misdirected as to the use of such evidence. Additionally, M contested the amendment of the indictment post-conviction, arguing that such an amendment would cause them injustice.

The court was required to determine whether the trial judge had erred in admitting evidence of uncharged acts and if the jury had been properly directed on its use. It was also necessary to assess whether the amendment to the indictment would result in an injustice to M. The legal principles guiding these issues centred around the relevance and probative value of uncharged acts evidence, the proper direction to the jury regarding such evidence, and the permissible scope of amendments to the indictment after conviction.

The court concluded that the trial judge had not erred in admitting evidence of uncharged acts as it was relevant and probative of the offences charged. The court further found that the jury had not been misdirected regarding the use of this evidence. Regarding the amendment to the indictment, the court held that the proposed changes would not cause injustice to M and were therefore permissible. Consequently, the appeal was dismissed.

The orders of the court included an amendment to count 6 in the indictment to accurately reflect the charged offences and a dismissal of the appeal against M's conviction.

Orders

Orders of the court

1. Amend count 6 in the indictment to read relevantly:

"That on a date unknown between the first day of January, 1990 and the thirty-first day of July, 1990 at Ipswich and Brisbane in the State of Queensland, M accused PM of committing indictable offences, namely unlawful carnal knowledge of a girl under the age of sixteen and indecent assault, with intent to gain the services of PM which M falsely pretended were those as an informant and undercover operative for M and to obtain the payment of a sum of money to M.”

2. Appeal against conviction 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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CITATION:	R v M [2004] QCA 184
PARTIES:	R v M (appellant)
FILE NO/S:	CA No 346 of 2003 DC No 2370 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	28 May 2004
DELIVERED AT:	Brisbane
HEARING DATE:	26 March 2004
JUDGES:	Davies and Jerrard JJA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Amend count 6 in the indictment to read relevantly: "That on a date unknown between the first day of January, 1990 and the thirty-first day of July, 1990 at Ipswich and Brisbane in the State of Queensland, M accused PM of committing indictable offences, namely unlawful carnal knowledge of a girl under the age of sixteen and indecent assault, with intent to gain the services of PM which M falsely pretended were those as an informant and undercover operative for M and to obtain the payment of a sum of money to M.” 2. Appeal against conviction dismissed
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL - PARTICULAR GROUNDS – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where evidence of uncharged acts admitted at trial – whether learned trial judge erred in allowing evidence – basis for admission of evidence of uncharged acts - whether evidence relevant to and probative of the commission of the offences charged CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL - PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – whether jury misdirected as to the use that could be made of evidence of uncharged acts CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – INFORMATION, INDICTMENT OR PRESENTMENT – AMENDMENT – TIME FOR AMENDMENT – amendment of indictment after conviction and on appeal – whether appellant would suffer injustice as result of amendment Criminal Code 1899 (Qld), s 416, s 427(1) Gilbert v R (2000) 201 CLR 411; 170 ALR 88, cited KRM v R (2001) 206 CLR 221;178 ALR 385; 75 ALJR 550, cited R v A [2000] QCA 520; CA No 118 of 2000, 19 December 2000, considered
COUNSEL:	D C Shepherd for the appellant D L Meredith, with R Swanwick, for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent