Orders delivered ex tempore 30 May 2006 Reasons delivered 21 June 2006
DELIVERED AT:
Orders delivered at Townsville Reasons delivered at Brisbane
HEARING DATE:
30 May 2006
JUDGES:
McMurdo P, Keane JA and Jones J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
CATCHWORDS:
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER - OF COUNTS - BY STATUTE - SAME FACTS OR SERIES OF OFFENCES OF SAME OR SIMILAR CHARACTER - appellant convicted by jury of the rape of one complainant and acquitted on a charge of raping a different complainant - learned primary judge refused an application by counsel for the appellant for separate trials of the two charges - learned primary judge concluded that similarities in evidence relevant to each complainant were sufficient to take evidence of similar facts beyond proof of propensity - where learned primary judge emphasised the improbability that both complainants could have lied, or been otherwise unreliable, in their evidence - whether separate trials should have been ordered
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - PRESENTATION OF DEFENCE CASE AND CROWN CASE AND REVIEW OF EVIDENCE - GENERALLY - appellant convicted by jury of the rape of one complainant (S) and acquitted on a charge of raping a different complainant (W) - appellant's counsel did not put it to S that the appellant did not digitally penetrate S - primary judge made reference, before the jury, to the failure of the appellant's counsel to do so - whether the comment of the learned primary judge was justified
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - GENERAL PRINCIPLES - evidence was before the jury that appellant had been in a sexual relationship with a girl under the age of 16 at the time of the events the subject of the charges - appellant argued before this Court that this evidence should not have been admitted and that the jury should have been discharged - learned primary judge gave instructions on the use of this evidence - whether the evidence should have been admitted and whether the instructions were sufficient
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - POWER TO DISMISS APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE - GENERAL PRINCIPLES - respondent argued before this Court that no substantial miscarriage of justice had occurred - whether a substantial…
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.
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Details
AGLC
R v MAP [2006] QCA 220
Case
[2006] QCA 220
Decision Date
CaseChat Overview and Summary
The case of R v MAP involved the appellant being convicted by a jury of the rape of one complainant, S, and acquitted on a charge of raping a different complainant, W. The appellant appealed against his conviction, raising several grounds, including that the primary judge should have ordered separate trials for the two charges, that the primary judge misdirected the jury by commenting on the appellant's counsel's failure to put certain propositions to S, that the evidence of the appellant's prior sexual relationship with a girl under the age of 16 should not have been admitted, and that a substantial miscarriage of justice had occurred. The Queensland Court of Appeal considered these grounds in turn.
The court first considered whether the primary judge should have ordered separate trials for the two charges. The court noted that the primary judge had refused the application for separate trials and concluded that the similarities in evidence relevant to each complainant were sufficient to take evidence of similar facts beyond proof of propensity. The court held that the primary judge's conclusion was correct, and that there was no error in refusing the application for separate trials.
Next, the court considered whether the primary judge misdirected the jury by commenting on the appellant's counsel's failure to put certain propositions to S. The court noted that the primary judge had made a comment before the jury, to the effect that the appellant's counsel had not put it to S that the appellant did not digitally penetrate her. The court held that the comment was not a misdirection, as it did not suggest to the jury that they should accept the appellant's counsel's failure to put the proposition as a fact.
The court then considered whether the evidence of the appellant's prior sexual relationship with a girl under the age of 16 should have been admitted. The court noted that the appellant argued that this evidence should not have been admitted, and that the jury should have been discharged. The court held that the evidence was properly admitted, and that the primary judge's instructions to the jury on the use of this evidence were sufficient.
Finally, the court considered whether a substantial miscarriage of justice had occurred. The court noted that the respondent argued that no substantial miscarriage of justice had occurred, but held that a substantial miscarriage of justice had in fact occurred. The court found that the appellant's conviction should be quashed and a re-trial ordered.
The court quashed the appellant's conviction and ordered a re-trial.