R v Ortega-Farfan - [2011] QCA 364

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ortega-Farfan [2011] QCA 364

PARTIES:

R
v
ORTEGA-FARFAN, Manuel Jesus
(appellant)

FILE NO/S:

CA No 255 of 2011
DC No 1442 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

13 December 2011

DELIVERED AT:

Brisbane

HEARING DATE:

1 December 2011

JUDGES:

Fraser and Chesterman JJA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    The appeal is allowed.

2.    The conviction is set aside.

3.    A verdict and judgment of acquittal is entered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant was convicted of one count of indecently dealing with a child under 16 years, with a circumstance of aggravation that the child was under 12 years – where the appellant took part in covertly recorded conversations with the complainant’s father – where, during these conversations, the appellant stated that he “can’t get involved with children or play with children” and that he was seeking psychological and psychiatric help – where portions of the conversations were omitted from the transcript read to the jury – where the portions excised provided important context to those statements – where the Crown relied on those statements as indicating a consciousness of guilt – where the trial judge directed the jury as to how the statements could be used – whether a miscarriage of justice occurred as a result of the jury receiving an incomplete picture of the conversations

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where there were a number of inconsistencies between the accounts of the conduct given by the complainant at various times – where, during the pre-recording of her evidence, the complainant agreed that her father had reminded her about a number of aspects of her evidence – where, during her police interview, the police officer misstated the complainant’s initial complaint back to her – where the complainant’s father’s evidence of early complaint was of doubtful reliability as a result of contradictions by other evidence, including the complainant’s own evidence, and evidence that the appellant continued to have unsupervised contact with the complainant after the alleged complaint – whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty

Criminal Code 1899 (Qld), s 668E(1)

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited
R v Ciantar (2006) 16 VR 26; [2006] VSCA 263, applied
R v PAH [2008] QCA 265, considered
R v Williams [1987] 2 Qd R 777, considered
SKA v The Queen (2011) 85 ALJR 571; [2011]…

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 Ortega-Farfan

Details

AGLC: R v Ortega-Farfan [2011] QCA 364
Case: [2011] QCA 364
Decision Date: 13 December 2011

CaseChat Overview and Summary

The appellant, Ortega-Farfan, appealed against his conviction for indecently dealing with a child under 16 years, with the aggravating factor that the child was under 12 years. The appellant had been convicted following a trial in the County Court of Victoria. The primary issues before the Court of Appeal were whether the jury received an incomplete picture of crucial evidence, leading to a miscarriage of justice, and whether the jury's verdict was unreasonable or not supported by the evidence.

The court examined the propriety of the trial judge’s direction to the jury regarding the use of statements made by the appellant during covertly recorded conversations with the complainant’s father. The appellant had expressed that he “can’t get involved with children or play with children” and was seeking psychological and psychiatric help. However, significant portions of these conversations were omitted from the transcript, which the court found to be critical in understanding the context of these statements. The court held that the jury was not provided with an accurate and complete understanding of the conversations, which could have influenced their perception of the appellant’s consciousness of guilt. Additionally, the court noted inconsistencies in the complainant's testimony, as well as the dubious reliability of the father's evidence. The court concluded that, taking into account these factors, the jury's verdict was not reasonably open to them based on the evidence presented.

The appeal was allowed, the conviction was set aside, and a verdict and judgment of acquittal was entered. The court found that the omissions in the evidence, along with the inconsistencies in the complainant's testimony, created substantial doubt about the reliability of the conviction, leading to the quashing of the conviction and the entry of an acquittal.

Orders

Orders of the court

1. The appeal is allowed.

2. The conviction is set aside.

3. A verdict and judgment of acquittal is entered.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Ortega-Farfan [2011] QCA 364
PARTIES:	R v ORTEGA-FARFAN, Manuel Jesus (appellant)
FILE NO/S:	CA No 255 of 2011 DC No 1442 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	13 December 2011
DELIVERED AT:	Brisbane
HEARING DATE:	1 December 2011
JUDGES:	Fraser and Chesterman JJA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The appeal is allowed. 2. The conviction is set aside. 3. A verdict and judgment of acquittal is entered.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant was convicted of one count of indecently dealing with a child under 16 years, with a circumstance of aggravation that the child was under 12 years – where the appellant took part in covertly recorded conversations with the complainant’s father – where, during these conversations, the appellant stated that he “can’t get involved with children or play with children” and that he was seeking psychological and psychiatric help – where portions of the conversations were omitted from the transcript read to the jury – where the portions excised provided important context to those statements – where the Crown relied on those statements as indicating a consciousness of guilt – where the trial judge directed the jury as to how the statements could be used – whether a miscarriage of justice occurred as a result of the jury receiving an incomplete picture of the conversations CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where there were a number of inconsistencies between the accounts of the conduct given by the complainant at various times – where, during the pre-recording of her evidence, the complainant agreed that her father had reminded her about a number of aspects of her evidence – where, during her police interview, the police officer misstated the complainant’s initial complaint back to her – where the complainant’s father’s evidence of early complaint was of doubtful reliability as a result of contradictions by other evidence, including the complainant’s own evidence, and evidence that the appellant continued to have unsupervised contact with the complainant after the alleged complaint – whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty Criminal Code 1899 (Qld), s 668E(1) M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited R v Ciantar (2006) 16 VR 26; [2006] VSCA 263, applied R v PAH [2008] QCA 265, considered R v Williams [1987] 2 Qd R 777, considered SKA v The Queen (2011) 85 ALJR 571; [2011]…