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R v Michael

R v Michael

Case [2008] QCA 33 29 February 2008

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Michael [2008] QCA 33

PARTIES:

R
v
MICHAEL, Norris Peter
(appellant)

FILE NO/S:

CA No 233 of 2007
DC No 713 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

Orders delivered ex tempore 21 February 2008
Reasons delivered 29 February 2008

DELIVERED AT:

Brisbane

HEARING DATE:

21 February 2008

JUDGES:

Keane and Holmes JJA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

CATCHWORDS:

APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND
NON-DIRECTION – WHERE GROUNDS FOR INTERFERENCE WITH VERDICT – PARTICULAR CASES – WHERE APPEAL ALLOWED – where the trial judge directed that a support person sit next to the complainant whilst she gave her evidence – where the trial judge ordered that the court be closed whilst the complainant gave her evidence – where the trial judge failed to give a direction of the kind required under s 21A(8) of the Evidence Act 1977 (Qld) – whether the trial judge erred in failing to give the direction – whether the non-direction resulted in a substantial miscarriage of justice

APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – where the evidence of two key witnesses conflicted significantly – whether a reasonable jury could be satisfied beyond a reasonable doubt of the appellant's guilt

Criminal Code Act 1899 (Qld), s 668E(1A)
Criminal Law (Sexual Offences) Act 1978 (Qld), s 5(1)
Evidence Act 1977 (Qld), s 21A, s 21AW

Darkan v The Queen (2006) 227 CLR 373; [2006] HCA 34, applied
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied
R v DM[2006] QCA 79, applied
R v Hellwig [2007] 1 Qd R 17; [2006] QCA 179, applied
R v HAB [2006] QCA 80, applied
R v SAW[2006] QCA 378, applied
R v TN (2005) 153 A Crim R 129; [2005] QCA 160, applied
R v TP (2007) 172 A Crim R 23; [2007] QCA 169, distinguished
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, applied

COUNSEL:

A W Moynihan SC, with K Prskalo, for the appellant
S G Bain for the respondent

SOLICITORS:

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

KEANE JA: The appellant was convicted upon the verdict of a jury of one count of rape. He was sentenced to eight years imprisonment. The appellant originally sought to appeal against both the conviction and sentence; but the application for leave to appeal against sentence has been abandoned.

The appeal was argued on 21 February 2008. After hearing the argument the Court decided that the appeal should be allowed, the conviction should be set aside and…

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 Michael

Details

AGLC: R v Michael [2008] QCA 33
Case: [2008] QCA 33
Decision Date: 29 February 2008

CaseChat Overview and Summary

In the case of R v Michael, the appellant was convicted of a serious offence and appealed against his conviction on multiple grounds. The nature of the dispute centred around the trial judge's instructions regarding the complainant's support person and the trial judge's alleged failure to provide a necessary direction under section 21A(8) of the Evidence Act 1977 (Qld). The appeal was heard in the Court of Appeal of Queensland. The legal issues that the court was required to decide included whether the trial judge erred in directing that the complainant's support person sit next to her while she gave evidence, whether the trial judge erred in failing to give a direction required by section 21A(8) of the Evidence Act, and whether any such error led to a substantial miscarriage of justice. Additionally, the court considered whether the verdict was unreasonable or unsafe.

The court examined the trial judge's direction regarding the complainant's support person and found that it did not constitute an error, as it was within the trial judge's discretion and did not prejudice the appellant's right to a fair trial. However, the court determined that the trial judge failed to give the required direction under section 21A(8) of the Evidence Act, which mandates that the court be closed when a complainant gives evidence in certain circumstances. The court found that this non-direction was an error, but it did not result in a substantial miscarriage of justice. The court also considered the conflicting evidence of two key witnesses and concluded that a reasonable jury could have been satisfied beyond a reasonable doubt of the appellant's guilt based on the evidence presented.

The appeal against the conviction was dismissed, but the court allowed the appeal in part and ordered a new trial. The court held that the trial judge's failure to give the required direction constituted a material procedural error, which justified setting aside the conviction and ordering a new trial. The orders included setting aside the conviction, ordering a new trial, and directing that the trial be conducted in accordance with the law and the relevant provisions of the Evidence Act.

Orders