R v PAF - [2007] QCA 414

SUPREME COURT OF QUEENSLAND

CITATION:

R v PAF [2007] QCA 414

PARTIES:

R
v
PAF
(appellant)

FILE NO/S:

CA No 205 of 2006
DC No 310 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

23 November 2007

DELIVERED AT:

Brisbane

HEARING DATE:

16 November 2007

JUDGES:

de Jersey CJ, Jerrard JA and Holmes JA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeal allowed
2. Convictions set aside
3. New trial ordered

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – FRESH EVIDENCE – AVAILABILITY AT TRIAL; MATERIALITY AND COGENCY – PARTICULAR CASES – MATERIALITY AND COGENCY – ADMISSIONS BY CROWN WITNESS THAT EVIDENCE FALSE – where the appellant was convicted, after a jury trial, of two counts of incest against his daughter – where the appellant appeals against his conviction on the basis that fresh evidence has come to light – whether the jury, acting reasonably, could have acquitted the appellant had the fresh evidence been before the court

Craig v The King (1933) 49 CLR 429, considered
Gallagher v The Queen (1986) 160 CLR 392, considered

COUNSEL:

M J Byrne QC for the appellant
S G Bain for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

de JERSEY CJ: I have had the advantage of reading the reasons for judgment of Holmes JA. I agree with the orders proposed by Her Honour, and with her reasons.

JERRARD JA: I agree with the reasons and orders proposed by Holmes JA.

HOLMES JA: In May 2006, the appellant was convicted, after a jury trial, of two counts of incest against his daughter, P. He appeals against his conviction on the basis that fresh evidence has come to light, in the form of a recantation by the complainant of her allegations against him, which, had it been before the jury at the trial would have raised a real prospect of acquittal. The Crown did not contend that the evidence was not fresh or relevant, but rather that it was not cogent or plausible, qualities which it must possess for a miscarriage of a justice to be demonstrated.[1]
[1]Craig v The King (1933) 49 CLR 429 at 439.

The events giving rise to the charges (and others, of which the appellant was acquitted) were said to have occurred between February and September 2003, when P was 15. XY, who had befriended the appellant and his fiancée, MW, gave evidence that on 16 September of that year, P confided to him that her father had had sex with her. That resulted in the police being informed. P was interviewed on 29 September and said that she had engaged in sexual encounters with her father at his insistence on a number of occasions. On…

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 PAF

Details

AGLC: R v PAF [2007] QCA 414
Case: [2007] QCA 414
Decision Date: 23 November 2007

CaseChat Overview and Summary

In the case of R v PAF, the appellant, PAF, appealed against his conviction of two counts of incest against his daughter. The case was heard in the court of appeal. The appellant was convicted after a jury trial and sought to appeal on the grounds of fresh evidence that had come to light. The central legal issues in this appeal concerned whether the fresh evidence was material and cogent, and whether the jury, acting reasonably, could have acquitted the appellant if the fresh evidence had been before them.

The court found that the fresh evidence was indeed material and cogent. The evidence involved admissions by a key Crown witness that the evidence presented at the trial was false. The court concluded that this fresh evidence was both material and cogent, as it had the potential to undermine the credibility of the Crown's case and affect the outcome of the trial. Furthermore, the court found that if the fresh evidence had been before the jury, it was open to them to acquit the appellant. This was because the false evidence was a significant part of the Crown's case, and the fresh evidence demonstrated that this evidence could not be relied upon.

Given the materiality and cogency of the fresh evidence, and the potential impact on the jury's decision, the court allowed the appeal. The convictions were set aside, and a new trial was ordered. This decision ensures that the appellant receives a fair trial, with all material and cogent evidence being considered by the jury.

Orders

Orders of the court

1. Appeal allowed

2. Convictions set aside

3. New trial ordered

Background

Background to the litigation

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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 PAF [2007] QCA 414
PARTIES:	R v PAF (appellant)
FILE NO/S:	CA No 205 of 2006 DC No 310 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	23 November 2007
DELIVERED AT:	Brisbane
HEARING DATE:	16 November 2007
JUDGES:	de Jersey CJ, Jerrard JA and Holmes JA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal allowed 2. Convictions set aside 3. New trial ordered
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – FRESH EVIDENCE – AVAILABILITY AT TRIAL; MATERIALITY AND COGENCY – PARTICULAR CASES – MATERIALITY AND COGENCY – ADMISSIONS BY CROWN WITNESS THAT EVIDENCE FALSE – where the appellant was convicted, after a jury trial, of two counts of incest against his daughter – where the appellant appeals against his conviction on the basis that fresh evidence has come to light – whether the jury, acting reasonably, could have acquitted the appellant had the fresh evidence been before the court Craig v The King (1933) 49 CLR 429, considered Gallagher v The Queen (1986) 160 CLR 392, considered
COUNSEL:	M J Byrne QC for the appellant S G Bain for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent