R v PV; Ex parte Attorney-General (Qld) - [2004] QCA 494

SUPREME COURT OF QUEENSLAND

CITATION:

R v PV; ex parte A-G (Qld) [2004] QCA 494

PARTIES:

R
v
PV
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 238 of 2004
DC No 766 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Reference under s 668A Criminal Code

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

23 December 2004

DELIVERED AT:

Brisbane

HEARING DATE:

26 October 2004

JUDGES:

McMurdo P, McPherson JA 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.   Answer the questions posed by the appellant as follows:

1. (a) Unnecessary to answer
    (b) Unnecessary to answer
    (c) No

2.       No

3.     3. (a) Unnecessary to answer
   (b) No

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – MISCELLANEOUS MATTERS – QUEENSLAND – CASE STATED AND REFERENCE OF QUESTION OF LAW – Attorney-General's appeal against granting of pre-trial applications for separate trials and for exclusion of certain evidence – respondent on trial for four counts of indecent treatment involving two complainant sisters – whether learned primary Judge applied the correct legal principles in ordering a separate trial of the charges concerning the different complainants – whether children's mother's evidence of respondent's apology immediately after the making of the complaints was admissible as an admission against interest – whether reference involved points of law

Criminal Code 1899 (Qld), s 597A, s 668A
Evidence Act 1977 (Qld), s 130

Bunning v Cross (1978) 141 CLR 54, cited
Hoch v The Queen (1988) 165 CLR 292, cited
Pfennig v The Queen (1995) 182 CLR 461, cited
R v Lewis; ex parte Attorney-General [1991] 2 Qd R 294, cited
R v Massey [1997] 1 Qd R 404, cited
R v Noble [2000] QCA 523; CA No 99 of 2000, 22 December 2000, cited
R v O'Keefe [2000] 1 Qd R 564, cited
R v Sakail [1993] 1 Qd R 312, cited

COUNSEL:

L J Clare for the appellant
B G Devereaux for the respondent

SOLICITORS:

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

McMURDO P:This is the first reference brought under s 668A Criminal Code for this Court to consider and give an opinion on what the appellant, the Queensland Attorney-General, contends are points of law.

The respondent has been charged on indictment in the District Court with four counts of indecent treatment of a child under 12 years under his care for the time being between 1 December 2000 and 23 January 2001. The two complainants are the respondent's grand-daughters, J aged nine and S aged 11 at the relevant times. On 21 July 2004, the day the trial was first listed for hearing and before the jury was empanelled, the respondent applied to the court to separate the trials of the counts concerning J from those concerning…

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.

Keep reading for free

Create a free CaseChat account to read R v PV; Ex parte Attorney-General (Qld) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2004] QCA 494
Decision Date: 23 December 2004

CaseChat Overview and Summary

The case of R v PV; Ex parte Attorney-General (Qld) involved an appeal by the Attorney-General against the granting of certain pre-trial applications by the respondent, who was on trial for four counts of indecent treatment involving two complainant sisters. The primary Judge had ordered a separate trial of the charges concerning the different complainants and excluded certain evidence, including the children's mother's evidence of the respondent's apology immediately after the making of the complaints. The appeal raised questions about whether the primary Judge applied the correct legal principles in ordering the separate trial and whether the excluded evidence was admissible as an admission against interest.

The legal issues before the court were whether the primary Judge applied the correct legal principles in ordering a separate trial of the charges concerning the different complainants and whether the children's mother's evidence of the respondent's apology immediately after the making of the complaints was admissible as an admission against interest. The court was also required to determine whether the reference involved points of law.

The court held that the appeal should be allowed and answered the questions posed by the appellant. The court found that the primary Judge did not apply the correct legal principles in ordering a separate trial of the charges concerning the different complainants. The court also held that the children's mother's evidence of the respondent's apology immediately after the making of the complaints was not admissible as an admission against interest. The court further held that the reference did not involve points of law.

The court allowed the appeal and answered the questions posed by the appellant as follows: (a) Unnecessary to answer, (b) Unnecessary to answer, (c) No, No, and (a) Unnecessary to answer, (b) No. The court did not consider it necessary to answer certain questions as the issues had been resolved by the court's findings. This decision provides important guidance on the legal principles to be applied in cases involving separate trials and the admissibility of evidence as admissions against interest.

Orders

Orders of the court

1. Allow the appeal

2. Answer the questions posed by the appellant as follows:

1. (a) Unnecessary to answer

(b) Unnecessary to answer

2. No

3. 3. (a) Unnecessary to answer

(b) No

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v PV; ex parte A-G (Qld) [2004] QCA 494
PARTIES:	R v PV (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 238 of 2004 DC No 766 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Reference under s 668A Criminal Code
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	23 December 2004
DELIVERED AT:	Brisbane
HEARING DATE:	26 October 2004
JUDGES:	McMurdo P, McPherson JA 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. Answer the questions posed by the appellant as follows: 1. (a) Unnecessary to answer (b) Unnecessary to answer (c) No 2. No 3. 3. (a) Unnecessary to answer (b) No
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – MISCELLANEOUS MATTERS – QUEENSLAND – CASE STATED AND REFERENCE OF QUESTION OF LAW – Attorney-General's appeal against granting of pre-trial applications for separate trials and for exclusion of certain evidence – respondent on trial for four counts of indecent treatment involving two complainant sisters – whether learned primary Judge applied the correct legal principles in ordering a separate trial of the charges concerning the different complainants – whether children's mother's evidence of respondent's apology immediately after the making of the complaints was admissible as an admission against interest – whether reference involved points of law Criminal Code 1899 (Qld), s 597A, s 668A Evidence Act 1977 (Qld), s 130 Bunning v Cross (1978) 141 CLR 54, cited Hoch v The Queen (1988) 165 CLR 292, cited Pfennig v The Queen (1995) 182 CLR 461, cited R v Lewis; ex parte Attorney-General [1991] 2 Qd R 294, cited R v Massey [1997] 1 Qd R 404, cited R v Noble [2000] QCA 523; CA No 99 of 2000, 22 December 2000, cited R v O'Keefe [2000] 1 Qd R 564, cited R v Sakail [1993] 1 Qd R 312, cited
COUNSEL:	L J Clare for the appellant B G Devereaux for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondent