R v Marshall

Case [2010] QCA 43

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 2009

DIVISION:

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 made

ORDER:

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 admitted

CRIMINAL 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 accuser

CRIMINAL 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 93A

Ali 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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Details
AGLC
R v Marshall [2010] QCA 43
Case
[2010] QCA 43
Decision Date

CaseChat Overview and Summary

The appellant was convicted of various sexual offences against a child under his care, including unlawful carnal knowledge, indecent treatment, exposing a child to an indecent film, and maintaining a sexual relationship with a child under the age of 16 years. He was sentenced to six years in prison. The case was heard in the appellate court, which was tasked with determining whether the appellant's appeal should be dismissed or if a new trial should be ordered due to a potential miscarriage of justice.

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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