R v Noble

[2000] QCA 523

SUPREME COURT OF QUEENSLAND

CITATION:

R v Noble   [2000] QCA 523

PARTIES:

R
v
NOBLE, Keith Ronald
(appellant)

FILE NO/S:

CA No 99 of 2000
DC No 1024 of 1998

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

22 December 2000

DELIVERED AT:

Brisbane

HEARING DATE:

6 October 2000

JUDGES:

McMurdo P, Pincus JA and Mackenzie 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 – WITNESSES – OTHER MATTERS – witness gave evidence of conversations which took place about 18 years previously – whether required to give evidence of conversations in direct speech – whether sufficient to give substance or effect of conversations from effect left on witness' memory

CRIMINAL LAW – EVIDENCE – SIMILAR FACTS – RELEVANCE – SEXUAL OFFENCES – whether evidence of uncharged acts should have been admitted

CRIMINAL LAW – EVIDENCE – COMPLAINTS – FIRST REASONABLE OPPORTUNITY – long gap between time of offences and time of trial – difficulty in establishing whether first complaint made at earliest reasonable opportunity – whether evidence of fresh complaint should have been excluded

Byron [2000] QCA 177; CA No 321 of 1999, 16 May 2000, cited

C [2000] QCA 385; CA No 131 of 1999, 22 September 2000, cited

Crampton [2000] HCA 60, 23 November 2000, considered
Freeman [1980] VR 1, considered
Gipp (1998) 72 ALJR 1012, considered
Godinho (1911) 7 Crim App R 12, approved

LSS [1998] QCA 303; CA No 128 of 1998, 2 October 1998, cited

M (1994) 181 CLR 487, mentioned
Suresh (1998) 153 ALR 145, mentioned
US v Castro 813 F 2d 571 (1987), mentioned

COUNSEL:

A F Maher for the appellant
D Meredith for the respondent

SOLICITORS:

Forest Lake Lawyers for the appellant
Director of Public Prosecutions (Qld) for the respondent

1. McMURDO P:  I have read the reasons for judgment of Pincus JA and am in general agreement with them.  I wish only to add the following.

1. I agree that the learned primary judge erred in insisting that the defence witness Barry express his claimed recollection of a 1982 conversation with the complainant in direct speech. After many such interventions, the judge went so far as to adjourn the trial so that Barry could discuss his mode of giving evidence with his barrister.

1. The reference from Wigmore on Evidence[1] quoted in para [18] of Pincus JA's reasons was cited with approval in US v Castro:[2]

"… in practice verbal precision cannot be expected when the source of evidence as to an utterance is the memory of a witness. See generally 7 Wigmore on Evidence §2097 at 608-11 (Chadbourne rev. ed. 1978).  However, courts historically have required a party offering testimony as to an utterance to present fairly the 'substance or effect' and context of the statement.  In other words, while verbal precision may…