SUPREME COURT OF QUEENSLAND
CITATION:
R v Marshall [2010] QCA 43
PARTIES:
R
v
MARSHALL, Peter John
(appellant)FILE NO/S:
CA No 73 of 2009
DC No 606 of 2009DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
5 March 2010
DELIVERED AT:
Brisbane
HEARING DATE:
15 February 2010
JUDGES:
McMurdo P, Keane and Chesterman JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order madeORDER:
Appeal dismissed
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL
– MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where appellant convicted upon a guilty verdict of two counts of unlawful carnal knowledge of a complainant who was under his care, four counts of indecent treatment of a child who was under his care, one count of exposing a child to an indecent film, and one count of maintaining a sexual relationship with a child under the age of 16 years – where appellant sentenced to six years imprisonment – where complainant gave evidence by way of a tape recorded interview under s 93A of the Evidence Act 1977 (Qld) – where the s 93A interview contained references by the complainant to two acts of intercourse of which the appellant had been acquitted after an earlier trial – where appellant did not object to this at trial – whether evidence improperly admittedCRIMINAL LAW – APPEAL AND NEW TRIAL
– MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where appellant applied to the trial judge for an order that the complainant be called as a witness, or alternatively, that she be further cross-examined pursuant to s 21AN of the Evidence Act 1977 (Qld) – where the application was refused by the trial judge – whether justice miscarried because the appellant was denied the opportunity to confront his accuserCRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where complainant did not make a complaint until almost one year after the acts complained of occurred – where appellant not convicted until almost five years after the acts complained of occurred – where trial judge did not give a Longman direction – where trial judge did not give a Robinson direction – whether justice miscarried due to the failure of the trial judge to provide proper directions to the jury
Criminal Code 1899 (Qld), s 668E(1)
Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A(3), s 4A(4), s 4A(5)
Evidence Act 1977 (Qld), s 21AK, s 21AN, s 21AN(3), s 93AAli v The Queen (2005) 79 ALJR 662; [2005] HCA 8, cited
Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, considered
R v Burns (1999) 107 A Crim R 330; [1999] QCA 189, cited
R v Grech [1997] 2 VR 609
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- AGLC
- R v Marshall [2010] QCA 43
- Case
- [2010] QCA 43
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the admission of certain evidence amounted to a miscarriage of justice, whether the refusal to call the complainant as a witness or allow further cross-examination amounted to a miscarriage of justice, and whether the trial judge's failure to provide certain jury directions amounted to a miscarriage of justice. The appellant argued that the inclusion of acquitted acts in the complainant's evidence, the denial of an opportunity to further cross-examine the complainant, and the failure to give Longman and Robinson directions to the jury constituted a miscarriage of justice.
The court found that the inclusion of acquitted acts in the complainant's evidence did not amount to a miscarriage of justice, as the appellant had not objected to the evidence at trial. The court also found that the refusal to call the complainant as a witness or allow further cross-examination did not amount to a miscarriage of justice, as the appellant had not demonstrated that the evidence from the complainant was unreliable or that he had been prejudiced by the refusal. Finally, the court held that the trial judge's failure to give Longman and Robinson directions did not amount to a miscarriage of justice, as the jury had been adequately directed on the assessment of the complainant's credibility and the timing of the complaint.
The appeal was dismissed, and the conviction and sentence were upheld.
Orders
Orders of the court
Appeal 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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