R v PAS

[2014] QCA 289

SUPREME COURT OF QUEENSLAND

CITATION:

R v PAS [2014] QCA 289

PARTIES:

R
v
PAS
(appellant)

FILE NOS:

CA No 70 of 2014
DC No 1918 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

21 November 2014

DELIVERED AT:

Brisbane

HEARING DATE:

2 October 2014

JUDGES:

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

ORDERS:

1.     Allow the appeal.

2.     Set aside the convictions.

3.    Order a new trial.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION AND NON-DIRECTION – MISDIRECTION – where the appellant was convicted after a jury trial of three counts of rape, one count of deprivation of liberty and one count of aggravated indecent treatment – where the appellant contended that the trial judge wrongly directed the jury that a complaint made by the complainant to her aunt about an uncharged act was capable of bolstering her credit – where the trial judge did not distinguish between preliminary complaint evidence which could be used to bolster credit pursuant to s 4A of the Criminal Law (Sexual Offences) Act 1978 (Qld) and prior statements about uncharged acts – where there had been no request for redirection by defence counsel at trial – whether the trial judge erred on a matter of law – whether there was a miscarriage of justice – whether the provision in s 668E(1)(A) of the Criminal Code should be applied

Criminal Code 1899 (Qld), s 668E(1)(A)
Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A

R v NM [2013] 1 Qd R 374; [2012] QCA 173, followed

COUNSEL:

M Copley QC for the appellant
T Fuller QC for the respondent

SOLICITORS:

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

1. HOLMES JA:  The appellant was convicted after a jury trial of three counts of rape, one count of deprivation of liberty and one count of aggravated indecent treatment.  He appealed his convictions on two grounds.  The first was that the trial judge wrongly directed the jury that a complaint made by the complainant to her aunt was capable of bolstering her credit.  The second concerned a contention that the trial judge’s conduct had distracted the jury during defence counsel’s closing address; it was said that her Honour’s refusal to discharge the jury when the matter was raised occasioned a miscarriage of justice.

The Crown case

1. The complainant, B, was the daughter of the appellant’s de facto wife, with whom he had formed a relationship in 2003.  In June 2011, B took part in an interview with police in which she alleged that the appellant had committed a number of sexual assaults on her.  The first occurred in 2005, the year she turned eight; the appellant had come into her bedroom and touched her chest and the area of her…