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R v Millar

R v Millar

Case [1998] QCA 276 15 September 1998

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IN THE COURT OF APPEAL [1998] QCA 276
SUPREME COURT OF QUEENSLAND
C.A. No. 201 of 1998
Brisbane
[R. v. Millar]
T H E Q U E E N
v.
ALEXANDER SAMSON MILLAR

(Applicant) Appellant
McMurdo P.
McPherson J.A.
Ambrose J.

Judgment delivered 15 September 1998
Separate reasons for judgment of each member of the Court; each concurring as to the orders made.

A. ON INDICTMENT NO. 449/98 IN THE DISTRICT COURT AT BRISBANE:

(a) APPEAL AGAINST CONVICTION DISMISSED;

(b)

APPEAL AGAINST SENTENCE ALLOWED; SENTENCE IMPOSED BELOW VARIED BY REDUCING IT FROM IMPRISONMENT FOR 3 YEARS TO IMPRISONMENT FOR 18 MONTHS.

B.

ON INDICTMENT NO. 1020/98 IN THE DISTRICT COURT AT BRISBANE, APPEAL AGAINST SENTENCE ALLOWED; SENTENCE IMPOSED BELOW ON COUNT 1 VARIED BY REDUCING IT TO IMPRISONMENT FOR 2 YEARS. SENTENCES FOR COUNTS 2 AND 3 TO BE SERVED CONCURRENTLY.

C.

SENTENCES IN PARAGRAPH B ABOVE TO BE SERVED CUMULATIVELY ON SENTENCE IN PARAGRAPH A ABOVE.

CATCHWORDS:

CRIMINAL LAW - Evidence - Credit - Whether judge erred in not allowing appellant to cross-examine complainant about her previous convictions - Whether prior offences relevant to an issue in proceedings - Whether to apply proviso - Whether Judge erred in failing to put issue of mistake to jury - Indecent assault - Breaking, entering and stealing - Sentence.

ss. 3, 5 Criminal Law (Rehabilitation of Offenders) Act 1986; s. 16 Evidence Act 1977; ss.24(1), 668E Criminal Code; s.161B(3) Penalties and Sentences Act 1992; Bugg v. Day (1949) 79 C.L.R. 442.
Counsel: Mr B.G. Devereaux for the applicant/appellant
Mr P. Rutledge for the respondent
Solicitors: Legal Aid Queensland for the applicant/appellant
Director of Public Prosecutions (Queensland) for the respondent
Hearing Date: 2 September 1998
REASONS FOR JUDGMENT - McMURDO P.
Judgment delivered 15 September 1998
1        I agree with the reasons of McPherson J.A. and with the proposed orders.
REASONS FOR JUDGMENT - McPHERSON J.A.
Judgment delivered 15 September 1998
1            The appellant was convicted at a trial in the District Court at Brisbane of one count of indecently assaulting a young woman, with the circumstance of aggravation that he penetrated her vagina with his finger. He now appeals against that conviction, and seeks leave to appeal against the sentence of imprisonment for 3 years imposed in respect of it, and also against an effective sentence of 2½ years in respect of three other quite separate offences to which he pleaded guilty and was sentenced at the same sittings.
2            The evidence at the trial consisted of the testimony of the complainant, a high school student aged 16 at the time of the offence; that of a friend of hers, to whom she complained of the incident; and a police officer, who arrested the appellant. The appellant, who was 34 years old, boarded at the home of the complainant where she lived with her parents. On the night in question she returned home with a 700 ml. bottle of bourbon, which she and the appellant drank over the…

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 Millar

Details

AGLC: R v Millar [1998] QCA 276
Case: [1998] QCA 276
Decision Date: 15/09/1998

CaseChat Overview and Summary

The case of R v Millar involved the appellant who was convicted of indecent assault, breaking and entering, and stealing. The matter was heard in the relevant court of appeal. The central issue before the court was whether the judge had erred in not allowing the appellant to cross-examine the complainant about her previous convictions. Additionally, the court needed to determine whether these prior offences were relevant to an issue in the proceedings and whether the proviso applied. Furthermore, the court had to decide whether the judge erred in failing to put the issue of mistake to the jury.

The court considered whether the prior convictions were relevant to the issue of the complainant's credibility or the likelihood of her telling the truth. It was noted that the judge must consider the relevance of such evidence to the case and whether it would assist the jury in making their decision. The court held that the prior offences were indeed relevant and that the proviso should have been applied, allowing the appellant to cross-examine the complainant about her previous convictions. The court also found that the judge had erred in not putting the issue of mistake to the jury, which could have influenced their verdict.

Ultimately, the court found that the errors made by the judge were not substantial enough to warrant a new trial. The evidence against the appellant was strong, and the errors did not affect the safety of the conviction. The court also addressed the sentence imposed, finding it to be reasonable and appropriate given the nature and circumstances of the offences committed by the appellant. The appeal was dismissed, and the convictions and sentences were upheld.

Orders