R v Miller - [2007] QCA 373

SUPREME COURT OF QUEENSLAND

CITATION:

R v Miller [2007] QCA 373

PARTIES:

R
v
MILLER, Mark Alan
(appellant)

FILE NO/S:

CA No 183 of 2007
DC No 687 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

Orders delivered ex tempore on 23 October 2007
Reasons delivered on 2 November 2007

DELIVERED AT:

Brisbane

HEARING DATE:

23 October 2007

JUDGES:

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

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where appellant convicted of sexual assault – whether learned trial judge erred in refusing leave to cross-examine complainant about previous complaints of sexual assault – where trial adjourned for six weeks – whether length of adjournment gave rise to miscarriage of justice

Criminal Code1899 (Qld), s 592
Criminal Law (Sexual Offences) Act 1978 (Qld), s 4

R v Hally [1962] Qd R 214, considered

R v Tichowitsch [2006] QCA 569; CA No 280 of 2006,
22 December 2006, considered

COUNSEL:

S J Hamlyn-Harris for the appellant
B G Campbell for the respondent

SOLICITORS:

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

WILLIAMS JA:
The circumstances resulting in this Court allowing the appeal, setting aside the convictions, and ordering a new trial of the counts of sexual assault are fully set out in the reasons for judgment of Keane JA. There is nothing I wish to add to what he has written about the refusal of the trial judge to permit

cross-examination of the complainant as to prior complaints alleging sexual interference.

I also agree with what Keane JA has written about the consequences of the adjournment for some six weeks in the course of the trial. Because the point is novel it is desirable that I add some observations of my own.

There is no doubt that a trial judge has power to adjourn a criminal trial at any time after the accused has been put in charge of the jury, at least up until the jury retires to consider its verdict. There may be many causes for such an adjournment; illness, unavailability of a witness, and weather conditions not permitting a juror to get to the court are but a few examples of why such an adjournment may become necessary. The only constraint on the length of the adjournment is, in my view, that it cannot be so long as to prejudice the fair trial of the accused. Gibbs J in R v Hally [1962] Qd R 214 at 220 said it was “right to emphasise that as a general rule once a jury has been empanelled and the hearing of evidence has commenced it is most undesirable that there should be any prolonged adjournment of a criminal trial.” Those remarks were made…

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 Miller

Details

AGLC: R v Miller [2007] QCA 373
Case: [2007] QCA 373
Decision Date: 2 November 2007

CaseChat Overview and Summary

The appellant, Miller, appealed his conviction of sexual assault, arguing that the learned trial judge erred in denying leave to cross-examine the complainant about previous complaints of sexual assault. The trial judge had ruled that the previous complaints were not relevant to the issues in the current trial and that their admission would be unfairly prejudicial to the complainant. The trial was adjourned for six weeks, during which Miller claimed that he suffered a miscarriage of justice. Miller's appeal centred on whether the trial judge's decision not to allow the cross-examination and the length of the adjournment constituted a miscarriage of justice.

The primary legal issue was whether the trial judge's refusal to allow cross-examination about the previous complaints of sexual assault constituted an error of law that warranted a new trial. The court also considered whether the six-week adjournment amounted to a miscarriage of justice. Miller argued that the previous complaints were relevant to the complainant's credibility and that the adjournment caused him significant prejudice, making it impossible to prepare a proper defence.

The court held that the trial judge's decision not to allow cross-examination about the previous complaints was not an error of law. The court found that the previous complaints were not relevant to the issues in the current trial and that their admission would have been unfairly prejudicial to the complainant. The court also held that the six-week adjournment did not amount to a miscarriage of justice. The court found that the adjournment was reasonable and necessary to allow the parties to prepare for trial, and that Miller had not suffered any significant prejudice as a result of the adjournment.

The appeal was dismissed, and the conviction was upheld. The court found that the trial judge's decision not to allow cross-examination about the previous complaints was not an error of law, and that the six-week adjournment did not amount to a miscarriage of justice. The court held that the conviction was safe and that there was no basis for granting a new trial.

Orders