R v Martens

Case [2007] QCA 137

SUPREME COURT OF QUEENSLAND

CITATION:

R v Martens [2007] QCA 137

PARTIES:

R
v
MARTENS, Frederick Arthur
(appellant/applicant)

FILE NO/S:

CA No 323 of 2006
SC No 83 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

20 April 2007

DELIVERED AT:

Brisbane

HEARING DATE:

20 March 2007

JUDGES:

McMurdo P, Holmes JA and Cullinane J
Separate reasons for judgment of each member of the court, each concurring as to the orders made

ORDER:

1.Appeal against conviction dismissed
2.Application for leave to appeal against sentence refused   

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – where the case turned on the conflicting evidence of the appellant and the complainant – whether the verdict was unreasonable

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – GENERAL PRINCIPLES – where defence counsel was prevented from cross-examining witnesses about their knowledge of a rumour – whether this was an exception to the rule against hearsay

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – GENERAL PRINCIPLES –whether the prosecutor should have cross-examined a witness about a prior inconsistent statement

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – GENERAL PRINCIPLES – where no special  warning was given to the jury regarding the delayed complaint or the age and culture of the complainant – whether a special warning was required

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – GENERAL PRINCIPLES – whether the directions given by the trial judge as to the date of the offence were correct

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – WHEN REFUSED – GENERALLY – whether the sentence was within the appropriate range for an offence against s 50BA Crimes Act 1914 (Cth)

Evidence Act 1997 (Qld), s 18, s 130

Longman v R (1989) 168 CLR 79, cited
Palmer v The Queen (1998) 193 CLR 1, distinguished
R v Jacobs [1993] 2 Qd R 541, cited

COUNSEL:

M P Sumner-Potts for the appellant/applicant
J D Henry for the respondent

SOLICITORS:

Cameron Price Lawyers for the appellant/applicant
Commonwealth Director of Public Prosecutions for the respondent

  1. PMcMurdo : The appellant was convicted in the Supreme Court at Cairns on 30 October 2006 after a six day jury trial of…

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Details
AGLC
R v Martens [2007] QCA 137
Case
[2007] QCA 137
Decision Date

CaseChat Overview and Summary

The appellant, a senior airline pilot working in Papua New Guinea and Indonesia, was convicted of indecently assaulting the complainant, an Indigenous girl from a village near a resort where he often flew. The appellant appealed against his conviction on the grounds that the jury's verdict was unreasonable, given the conflicting evidence presented by both parties. The case hinged on the credibility of the appellant's evidence and the complainant's testimony.

The court examined whether the verdict was unreasonable or insupportable, considering the conflicting accounts of the events. Additionally, the court reviewed whether the trial judge's decisions to prevent defence counsel from cross-examining witnesses about a rumour and whether the prosecutor should have cross-examined a witness about a prior inconsistent statement were correct. The court also considered whether the trial judge's directions to the jury about the date of the offence were accurate and whether a special warning was necessary regarding the delayed complaint and the age and culture of the complainant.

The court found that the evidence presented was sufficient to support the jury's verdict. The court held that the exclusion of evidence about the rumour and the failure to cross-examine the witness about a prior inconsistent statement did not constitute reversible error. The court also found that the directions given by the trial judge were correct and that no special warning was required. The court concluded that the verdict was reasonable and that the appeal against the conviction should be dismissed. The application for leave to appeal against the sentence was also refused, as the sentence was deemed to be within the appropriate range for the offence.

Orders

Orders of the court

1.Appeal against conviction dismissed

2.Application for leave to appeal against sentence refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellant gave and called evidence. He was a senior airline pilot principally working in Papua New Guinea and Indonesia. His company, Pioneer Health Services Pty Ltd, effectively provided a flying doctor service for Papua New Guinea. He flew and owned a number of planes. His company had a 36 million Kina contract over a five year period with the Papua New Guinea government and employed approximately 300 staff. Because the government defaulted in payments, the company suspended its operations in early 1999 and commenced litigation. It was successful but the government continued to appeal and did not meet the court orders made against it. By the end of 2003 the company had Supreme Court orders in its favour against the government for damages and interest of about seven million Kina. The case was well publicised in Papua New Guinea. He had been flying into the Western Province resort for about 15 years. It was a deer hunting and barramundi fishing lodge located on or near several river bends, waterways and marshes next to a tiny village. The only regional industry was tourism. With the suspension of the flying doctor service he had more free time. He took up the manager, Mr Brumley's, offer to fly regularly, three or four times a week, transporting cargo and passengers. Mr Brumley had a government lease over the land which was surrounded by the traditional owners' land. The complainant's father was the head of the traditional owners. The local people made demands on the resort for personal use of its dinghies, for money, credit, flights and for a share in the resort. A portion of the resort airstrip was on the land of the complainant's father. Posts would often be placed across the airstrip where it entered the traditional land making very dangerous landing conditions. He negotiated with Mr Brumley to purchase the resort which the appellant considered had great potential. The purchase was never finalised because of the delay in receipt of the proceeds of his company's action. In late 2001 others purchased Mr Brumley's share in the resort. During 2001 he negotiated with the traditional owners, including the complainant's father. He was careful to treat them with respect so as not to damage his prospects of purchasing the resort; good relations were essential. In the course of negotiations the complainant's father asked what benefits the appellant would bring if he purchased the resort. He raised the issue of educating some children in Australia. The appellant eventually agreed to assist the complainant and her female cousin by sponsoring their costs of travel to and their schooling in Australia. With this in mind he set about acquiring all the relevant documentation but, because the girls did not have birth certificates, they needed statutory declarations about where and when they were born. They also needed photographs and the closest place to obtain these was Port Moresby. The best arrangement was for the complainant to travel to Port Moresby with him one Friday so that he could have the photographs taken on Saturday morning and she could return early the next week on his first flight back to the village. He flew the complainant out of her village one Friday. Both her parents were in the village and provided him with the necessary documentation.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Australian immigration records showed that the appellant left Australia on 7 September 2001 and returned on 6 October 2001, on both dates through Horn Island. The appellant gave and called evidence. He was a senior airline pilot principally working in Papua New Guinea and Indonesia. His company, Pioneer Health Services Pty Ltd, effectively provided a flying doctor service for Papua New Guinea. He flew and owned a number of planes. His company had a 36 million Kina contract over a five year period with the Papua New Guinea government and employed approximately 300 staff. Because the government defaulted in payments, the company suspended its operations in early 1999 and commenced litigation. It was successful but the government continued to appeal and did not meet the court orders made against it. By the end of 2003 the company had Supreme Court orders in its favour against the government for damages and interest of about seven million Kina. The case was well publicised in Papua New Guinea. He had been flying into the Western Province resort for about 15 years. It was a deer hunting and barramundi fishing lodge located on or near several river bends, waterways and marshes next to a tiny village. The only regional industry was tourism. With the suspension of the flying doctor service he had more free time. He took up the manager, Mr Brumley's, offer to fly regularly, three or four times a week, transporting cargo and passengers. Mr Brumley had a government lease over the land which was surrounded by the traditional owners' land. The complainant's father was the head of the traditional owners. The local people made demands on the resort for personal use of its dinghies, for money, credit, flights and for a share in the resort. A portion of the resort airstrip was on the land of the complainant's father. Posts would often be placed across the airstrip where it entered the traditional land making very dangerous landing conditions. He negotiated with Mr Brumley to purchase the resort which the appellant considered had great potential. The purchase was never finalised because of the delay in receipt of the proceeds of his company's action. In late 2001 others purchased Mr Brumley's share in the resort. During 2001 he negotiated with the traditional owners, including the complainant's father. He was careful to treat them with respect so as not to damage his prospects of purchasing the resort; good relations were essential. In the course of negotiations the complainant's father asked what benefits the appellant would bring if he purchased the resort. He raised the issue of educating some children in Australia. The appellant eventually agreed to assist the complainant and her female cousin by sponsoring their costs of travel to and their schooling in Australia. With this in mind he set about acquiring all the relevant documentation but, because the girls did not have birth certificates, they needed statutory declarations about where and when they were born. They also needed photographs and the closest place to obtain these was Port Moresby. The best arrangement was for the complainant to travel to Port Moresby with him one Friday so that he could have the photographs taken on Saturday morning and she could return early the next week on his first flight back to the village. He flew the complainant out of her village one Friday. Both her parents were in the village and provided him with the necessary documentation.