R v ND

[2003] QCA 505

SUPREME COURT OF QUEENSLAND

CITATION:

R v ND [2003] QCA 505

PARTIES:

R
v
ND

(appellant)

FILE NO/S:

CA No 77 of 2003

DC No 403 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction and Sentence

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

14 November 2003

DELIVERED AT:

Brisbane

HEARING DATE:

10 October 2003

JUDGES:

McPherson JA, Holmes and McMurdo JJ

Separate reasons for judgment of each member of the Court, McPherson JA and Holmes J concurring as to the orders made, reasons of McMurdo J dissenting

ORDERS:

1.     Appeal allowed

2.     Conviction set aside

3.     Retrial ordered

4.     Appellant remanded in custody until further or other order of a court with jurisdiction to grant him bail

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – OTHER CASES – where appellant submitted that Crown opening adverted to evidence that did not emerge – where appellant submitted that complainant’s evidence was inconsistent with relationship evidence opened – where appellant submitted that complainant’s evidence rendered verdict unsafe and unsatisfactory – whether it was open on the evidence for the jury to reach a guilty verdict

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – CONDUCT OF LEGAL PRACTITIONERS – where appellant did not give evidence at trial – whether appellant was not adequately advised of the value of giving evidence – where error in the basis of advice – whether verdict should be set aside for miscarriage of justice

R v Green [1997] 1 Qd R 584, considered
Re Knowles (1984) VR 751, considered
R v Kyriacou (2000) 210 LSJS 296, applied
R v McConnell [2000] QCA 463; CA No 14 of 2000, 14 November 2000, considered
R v Scott (1996) 137 ALR 347, considered
R v Szabo (2001) 2 Qd R 214, considered
Sankar v State of Trinidad and Tobago [1995] 1 WLR 194, considered

TKWJ v R (2002) 76 ALJR 1579, considered

COUNSEL:

P J Callaghan for the appellant

S G Bain for the respondent

SOLICITORS:

Roberston O’Gorman for the appellant

Director of Public Prosecutions (Queensland) for the respondent

1.   McPHERSON JA:I agree with the reasons of Holmes J, which I have had the advantage of reading. The appeal should be allowed; the conviction and verdict should be set aside; and there should be an order for a new trial.  It is, of course, a matter for the Crown to determine in the light of all the available evidence, including that now contained in the exhibit to the affidavit of the appellant’s solicitor provided after the appeal was heard, whether or not the prosecution continues.  In saying that, I should not be taken as implying that the contents of that exhibit necessarily furnish a reason for not proceeding.  The contents, timing and circumstances of the most recent statement from the complainant, which is exhibited to…