R v Morris - [1995] QSC 64

THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 390 of 1994

Brisbane

Before Macrossan CJ
Pincus JA
Dowsett J

[R v Morris]

IN RE: AARON SHANE MORRIS

v.

REFERENCE BY ATTORNEY-GENERAL
UNDER s.669A OF THE CRIMINAL CODE

Judgment delivered 15/03/1995

Separate concurring reasons for judgment of each member of the Court
_____________________________________________________________________

IN ANSWER TO THE QUESTIONS IN THE ATTORNEY-GENERAL'S REFERENCE:

IT IS NOT NECESSARY TO ANSWER THIS QUESTION.
THE TRIAL JUDGE WRONGLY EXERCISED HIS DISCRETION TO EXCLUDE THE S. 93A STATEMENT.
IT IS NOT NECESSARY TO ANSWER THIS QUESTION.

CATCHWORDS: CRIMINAL LAW - Reference by Attorney-General under s.669A Criminal Code - medical evidence - probative value - prejudicial effect - admissability of video tape - discretion to exclude - interests of justice - unsafe and unsatisfactory - nolle prosequi - "perpetual stay of proceedings".
Ss. 93A, 98 Evidence Act.

Counsel:Mr D Bullock for the applicant.
Mr A J Rafter for the respondent.

Solicitors:Director of Prosecutions for the applicant
Legal Aid Office for the respondent.

Hearing date: 25 November, 1994.

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 15/03/1995

I agree with the reasons which have been prepared by Dowsett J in this matter

and with the answers that he proposes to the questions stated.

REASONS FOR JUDGMENT - PINCUS J.A.

I have read the reasons of Dowsett J. and I agree with those reasons.

REASONS FOR JUDGMENT - DOWSETT J

This is a reference by the Attorney-General under s.669A(2) of the Criminal Code. The accused was charged with rape upon a child under 12 years on or about 7 December, 1993. At the trial, the Crown proposed to call a medical practitioner to give evidence concerning the condition of the complainant's hymen shortly after that date. The learned trial Judge excluded that evidence. During the trial, the prosecution tendered a video recording of a police interview with the complainant pursuant to s.93A of the Evidence Act 1977. She also gave oral evidence. The learned trial Judge acceded to a belated request to exclude the video recording. At that point, the Crown indicated that it would not proceed further on the indictment. His Honour then ordered a "perpetual stay of proceedings". The Attorney seeks opinions as to the correctness of the evidentiary rulings and the stay.
The power to refer a point of law for the opinion of the court is dependent upon satisfaction of the conditions prescribed by s.669A(2), which permits such a reference if:-
"(a)the accused has been acquitted of the charge; or

(b)the accused has been discharged in respect of that charge after counsel for the Crown, as a result of a determination of the court of trial on that point of law, has duly informed the court that the Crown will not further proceed upon the indictment in relation to that charge."

There was some suggestion in argument that these proceedings may not have been determined in the way contemplated by s.669A(2)(b). It is therefore convenient to deal firstly with…

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 Morris

Details

AGLC: R v Morris [1995] QSC 64
Case: [1995] QSC 64
Decision Date: 15 March 1995

CaseChat Overview and Summary

The case of R v Morris involved a reference by the Attorney-General under section 669A of the Criminal Code, concerning a charge of rape on a child under 12 years of age. The accused was charged on or about 7 December 1993. The trial judge excluded medical evidence concerning the condition of the complainant's hymen and later excluded a video recording of a police interview with the complainant under section 93A of the Evidence Act. The Crown indicated it would not proceed further on the indictment following the exclusion of the video recording, leading the trial judge to order a "perpetual stay of proceedings." The Attorney-General sought opinions on the correctness of the evidentiary rulings and the stay.

The court considered whether the trial judge correctly exercised his discretion to exclude the medical evidence and the video recording. Regarding the medical evidence, the court held that the trial judge erred in excluding it as its probative value outweighed its prejudicial effect. The probative value of the evidence was significant in establishing the condition of the complainant's hymen, which was at least consistent with penetration. The prejudicial effect was not such that it would damage the fairness of the trial.

As for the video recording, the court found the trial judge's exclusion of it incorrect. The recording was admissible under section 93A of the Evidence Act, and the trial judge's discretion to exclude it under section 98 was not properly exercised. The court noted that the discrepancies in the complainant's recall of events were expected in child witnesses, and the purpose of section 93A was to avoid difficulties in extracting evidence from young witnesses in court. The prospect of an unsafe and unsatisfactory conviction was not a valid ground for exclusion.

Regarding the stay, the court concluded that no question of law arose, as the Crown had clearly indicated it would not proceed further. The court answered the reference questions, finding that the trial judge was incorrect in excluding the section 93A statement and that it was not necessary to answer the other questions.

Orders