R v ON

[2009] QCA 62

SUPREME COURT OF QUEENSLAND

CITATION:

R v ON [2009] QCA 62

PARTIES:

R
v
ON
(appellant)

FILE NO/S:

CA No 149 of 2008
DC No 92 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Rockhampton

DELIVERED ON:

24 March 2009

DELIVERED AT:

Brisbane

HEARING DATE:

18 February 2009

JUDGES:

Holmes, Muir and Fraser JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Appeal allowed, convictions set aside and retrial ordered on counts 1 to 9 and 12 to 13

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – OTHER MATTERS – where appellant convicted of one count of indecent treatment, six counts of rape, one count of assault occasioning bodily harm and two counts of common assault – where offences of violence joined with sex offences on the indictment – where defence did not object to joinder at trial – whether counts wrongly joined – whether defence obtained forensic advantage from joinder – whether miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where evidence of recorded pretext telephone conversation tendered at trial – where defence did not object to its admission – where Crown prosecutor alleged tape revealed appellant’s consciousness of guilt, though appellant made no admissions – where trial judge suggested to jury that appellant had failed to deny allegations put to him, and that jury might infer guilt from tenor of conversation – whether evidence admissible – whether trial judge should given jury a Barca direction and an Edwards direction

Criminal Code 1899 (Qld), s 567(2)

Ali v R (2005) 214 ALR 1; [2005] HCA 8, cited
Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42, cited
Edwards v The Queen (1992) 173 CLR 653; [1992] HCA 19, cited
Nudd v R (2006) 225 ALR 161; [2006] HCA 9, considered
R v SBB (2007) 175 A Crim R 449; [2007] QCA 173, cited
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, cited

COUNSEL:

J D Henry SC for the appellant
M J Copley SC for the respondent

SOLICITORS:

Michael Stockall Solicitor for the appellant
Director of Public Prosecutions (Qld) for the respondent

1. HOLMES JA:  The appellant appeals against his conviction on one count of indecent treatment (count 1), six counts of rape (counts 2 to 6 and 8), one count of maintaining an unlawful relationship (count 13), one count of assault occasioning bodily harm (count 7), and two counts of common assault (counts 9 and 12).  He was acquitted of a further two counts, of assault occasioning bodily harm (count 10) and killing an unborn child (count 11).  The complainant in respect of all counts was his step-daughter, B, and the offences were said to have been committed over a period from…