R v Myers - [2009] QCA 14

SUPREME COURT OF QUEENSLAND

CITATION:

R v Myers [2009] QCA 14

PARTIES:

R
v
MYERS, Cedric John
(appellant/applicant)

FILE NO/S:

CA No 124 of 2008
DC No 215 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction and Sentence

ORIGINATING COURT:

District Court at Mackay

DELIVERED ON:

13 February 2009

DELIVERED AT:

Brisbane

HEARING DATE:

3 February 2009

JUDGES:

McMurdo P, Keane JA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The application to adduce evidence is refused

2.   The appeal against conviction is dismissed

3.   The application for leave to appeal against sentence is refused

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – GENERAL ISSUES – appellant applied to adduce further evidence – sought to admit various affidavits regarding his character, the character of the complainant and circumstances of the offence – whether this evidence was available at trial – whether leave to adduce further evidence should be allowed

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – appellant claimed verdict was unreasonable, constituted a miscarriage of justice, and was not supported by the evidence – appellant claimed complainant made false allegations against appellant – appellant claimed case against him was weak – whether appeal against conviction should be allowed

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – PREJUDICIAL EVIDENCE – appellant claimed judge erred in admitting certain evidence – whether judge failed to ensure fairness of trial by admitting prejudicial evidence – whether evidence of complainant's admissions to another female teenager were unreliable – whether this evidence should have been admitted

CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – NATURE AND CIRCUMSTANCES OF OFFENCE – CIRCUMSTANCES OF OFFENCE – appellant claimed sentence of five years imprisonment was too high – whether sentence was manifestly excessive

Crimes Act 1914 (Cth), s 23K(1)(B)
Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A
Evidence Act 1977 (Qld), s 21A

R v MBC [2008] QCA 263, distinguished

COUNSEL:

The appellant appeared on his own behalf
B G Campbell for the respondent

SOLICITORS:

The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

McMURDO P: The appellant pleaded not guilty in the District Court at Mackay on 13 February 2008 to one count of maintaining a sexual relationship with a child. The complainant's evidence was pre-recorded that day under s 21A Evidence Act 1977 (Qld). On 17 March 2008, the appellant again pleaded not guilty, this time before a jury. The trial proceeded over the following three days. On 19 March 2008, the jury convicted him. The judge sentenced him to five years imprisonment. He filed his notice of appeal against conviction and sentence about one month late, but he was granted an extension of time by this Court, differently constituted, on 26 August 2008. Since then, a full appeal record book has been prepared. He has…

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 Myers

Details

AGLC: R v Myers [2009] QCA 14
Case: [2009] QCA 14
Decision Date: 13 February 2009

CaseChat Overview and Summary

The appellant in this case was convicted of a serious sexual offence and sentenced to five years in prison. The appellant sought to appeal the conviction, arguing that the verdict was unreasonable, constituted a miscarriage of justice, and was not supported by the evidence. Additionally, the appellant sought leave to adduce further evidence, including various affidavits relating to his character, the character of the complainant, and the circumstances of the offence. The appellant also claimed that the trial judge erred in admitting certain evidence, arguing that the judge failed to ensure the fairness of the trial by admitting prejudicial evidence.

The court examined the legal issues regarding the admissibility of further evidence, the reasonableness of the verdict, and the fairness of the trial. The court considered whether the appellant's application to adduce further evidence should be allowed, whether the appeal against conviction should be allowed, and whether the sentence was manifestly excessive. The court also considered whether the trial judge erred in admitting certain evidence, and whether the evidence of the complainant's admissions to another female teenager were reliable.

The court found that the appellant's application to adduce further evidence was not justified, as the evidence was available at the time of the trial. The court also found that the appeal against conviction should be dismissed, as the verdict was not unreasonable, did not constitute a miscarriage of justice, and was supported by the evidence. The court further found that the sentence of five years imprisonment was not manifestly excessive, and that the trial judge did not err in admitting certain evidence. The court found that the evidence of the complainant's admissions to another female teenager was reliable and should have been admitted.

The court made three orders. Firstly, the application to adduce evidence was refused. Secondly, the appeal against conviction was dismissed. Lastly, the application for leave to appeal against sentence was refused.

Orders

Orders of the court

1. The application to adduce evidence is refused

2. The appeal against conviction is dismissed

3. The application for leave to appeal against sentence is refused

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Myers [2009] QCA 14
PARTIES:	R v MYERS, Cedric John (appellant/applicant)
FILE NO/S:	CA No 124 of 2008 DC No 215 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction and Sentence
ORIGINATING COURT:	District Court at Mackay
DELIVERED ON:	13 February 2009
DELIVERED AT:	Brisbane
HEARING DATE:	3 February 2009
JUDGES:	McMurdo P, Keane JA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The application to adduce evidence is refused 2. The appeal against conviction is dismissed 3. The application for leave to appeal against sentence is refused
CATCHWORDS:	CRIMINAL LAW – EVIDENCE – GENERAL ISSUES – appellant applied to adduce further evidence – sought to admit various affidavits regarding his character, the character of the complainant and circumstances of the offence – whether this evidence was available at trial – whether leave to adduce further evidence should be allowed CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – appellant claimed verdict was unreasonable, constituted a miscarriage of justice, and was not supported by the evidence – appellant claimed complainant made false allegations against appellant – appellant claimed case against him was weak – whether appeal against conviction should be allowed CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – PREJUDICIAL EVIDENCE – appellant claimed judge erred in admitting certain evidence – whether judge failed to ensure fairness of trial by admitting prejudicial evidence – whether evidence of complainant's admissions to another female teenager were unreliable – whether this evidence should have been admitted CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – NATURE AND CIRCUMSTANCES OF OFFENCE – CIRCUMSTANCES OF OFFENCE – appellant claimed sentence of five years imprisonment was too high – whether sentence was manifestly excessive Crimes Act 1914 (Cth), s 23K(1)(B) Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A Evidence Act 1977 (Qld), s 21A R v MBC [2008] QCA 263, distinguished
COUNSEL:	The appellant appeared on his own behalf B G Campbell for the respondent
SOLICITORS:	The appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent