R v NE - [2003] QCA 574

SUPREME COURT OF QUEENSLAND

CITATION:

R v NE [2003] QCA 574

PARTIES:

R
v
NE
(appellant)

FILE NO/S:

CA No 311 of 2003
DC No 245 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED ON:

19 December 2003

DELIVERED AT:

Brisbane

HEARING DATE:

3 December 2003

JUDGES:

McMurdo P, Davies JA and Chesterman J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal against conviction dismissed

CATCHWORDS:

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - MATTERS CONCERNED WITH CONDUCT OF DEFENCE - LEGAL REPRESENTATION - GENERALLY - where appellant convicted of rape - where tape recording of police interview with appellant tendered in evidence - where on tape, appellant denied act of rape but was uncertain about things he allegedly said to complainant - where appellant had two conferences with legal representatives concerning whether he should give evidence at trial - where appellant did not give evidence at trial - where, had appellant given evidence, he would have given evidence inconsistent with his earlier version - whether miscarriage of justice occurred by failure of appellant to give evidence

R v ND [2003] QCA 505; CA No 77 of 2003, 14 November 2003, considered [[2004] 2 QdR ###]
R v Paddon [1999] 2 QdR 387, considered

TKWJ v R (2002) 212 CLR 124, followed

COUNSEL:

M J Byrne QC for appellant
D L Meredith for respondent

SOLICITORS:

Ryan & Bosscher for appellant
Director of Public Prosecutions (Queensland) for respondent

McMURDO P: I agree with the reasons for judgment of Davies JA which I have had the benefit of reading.

The evidence given on the appeal by the appellant and his legal advisors at the trial amply demonstrates an objectively reasonable explanation for the appellant's lawyers advising him not to give evidence: TKWJ v R.[1] The appellant made an informed and free choice to accept that advice. He has not demonstrated that he has been deprived of the chance of an acquittal that was fairly open to him and that a miscarriage of justice has resulted.
[1](2002) 212 CLR 124, [13]-[17], [107]-[112].

I agree with Davies JA that the appeal should be dismissed.

DAVIES JA: On 1 September this year the appellant was convicted in the District Court at Beenleigh of rape. He appeals against that conviction. He also sought leave to appeal against his sentence but that application appears to have been abandoned. This Court accordingly dismissed that application. He is also no longer pursuing his original ground of appeal which was that the verdict was unsafe and unsatisfactory and sought leave to substitute the following ground of appeal:

"A miscarriage of justice occurred due to the Appellant not being properly advised as to whether he should give evidence on oath at the trial."

Leave was granted to substitute that ground.

The circumstances giving rise to the appellant's trial and conviction were as follows. The appellant and…

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 NE

Details

AGLC: R v NE [2003] QCA 574
Case: [2003] QCA 574
Decision Date: 19 December 2003

CaseChat Overview and Summary

In the case of R v NE, the appellant was convicted of rape and brought an appeal against the conviction. The central issue in the appeal was whether a miscarriage of justice had occurred due to the appellant's decision not to give evidence at his trial, which would have been inconsistent with his earlier statements during a police interview. The Court of Appeal was tasked with determining if the appellant's failure to testify resulted in a miscarriage of justice, considering the appellant's earlier statements and the advice he received from his legal representatives. The Court of Appeal also had to consider the relevance of the appellant's uncertain recollections about his statements to the complainant during the alleged rape.

The court examined the legal principles surrounding the appellant's right to remain silent and the potential consequences of his decision not to testify. The court considered the appellant's two conferences with his legal representatives and the advice given regarding whether he should give evidence. The court also reviewed the content of the police interview tape, which showed the appellant denying the act of rape but being uncertain about specific things he allegedly said to the complainant. The court had to balance the appellant's right to remain silent with the potential impact of his silence on the fairness of the trial.

After careful consideration, the Court of Appeal concluded that the appellant's decision not to give evidence did not constitute a miscarriage of justice. The court found that the appellant's uncertainty about his statements to the complainant during the police interview and the advice given by his legal representatives did not undermine the overall fairness of the trial. The court relied on the principles established in R v ND and TKWJ v R, determining that the appellant's silence did not result in a miscarriage of justice. Consequently, the Court of Appeal dismissed the appeal against the conviction.

Orders

Orders of the court

Appeal against conviction dismissed

Background

Background to the litigation

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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 NE [2003] QCA 574
PARTIES:	R v NE (appellant)
FILE NO/S:	CA No 311 of 2003 DC No 245 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Beenleigh
DELIVERED ON:	19 December 2003
DELIVERED AT:	Brisbane
HEARING DATE:	3 December 2003
JUDGES:	McMurdo P, Davies JA and Chesterman J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal against conviction dismissed
CATCHWORDS:	CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - MATTERS CONCERNED WITH CONDUCT OF DEFENCE - LEGAL REPRESENTATION - GENERALLY - where appellant convicted of rape - where tape recording of police interview with appellant tendered in evidence - where on tape, appellant denied act of rape but was uncertain about things he allegedly said to complainant - where appellant had two conferences with legal representatives concerning whether he should give evidence at trial - where appellant did not give evidence at trial - where, had appellant given evidence, he would have given evidence inconsistent with his earlier version - whether miscarriage of justice occurred by failure of appellant to give evidence R v ND [2003] QCA 505; CA No 77 of 2003, 14 November 2003, considered [[2004] 2 QdR ###] R v Paddon [1999] 2 QdR 387, considered TKWJ v R (2002) 212 CLR 124, followed
COUNSEL:	M J Byrne QC for appellant D L Meredith for respondent
SOLICITORS:	Ryan & Bosscher for appellant Director of Public Prosecutions (Queensland) for respondent