R v Qd

[2006] QCA 115

SUPREME COURT OF QUEENSLAND

CITATION:

R v QD [2006] QCA 115

PARTIES:

R
v
QD
(applicant/appellant)

FILE NO/S:

CA No 353 of 2005
DC No 275 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Ipswich

DELIVERED EX TEMPORE ON:

18 April 2006

DELIVERED AT:

Brisbane

HEARING DATE:

18 April 2006

JUDGES:

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

ORDER:

1. Appeal allowed
2. Conviction set aside and new trial ordered

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISCARRIAGE OF JUSTICE - GENERALLY - where appellant convicted of indecent treatment of a child under 16, the child in question being under 12 - where complainant was five years old - where complainant's evidence was apt to convey to the jury that the appellant had previously been gaoled for a similar act committed on the complainant - where no direction on this evidence was sought by counsel at trial and where learned trial judge gave no direction - whether in these circumstances the appellant could receive a fair trial with this evidence before the jury and whether there was a miscarriage of justice

Evidence Act 1977 (Qld), s 21AK, s 21AM, s 21AW, s 93A
Criminal Code 1899 (Qld), s 668E

Nudd v The Queen [2006] HCA 9, cited
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124, cited
Weiss v The Queen [2005] HCA 81; (2005) 80 ALJR 444, applied

COUNSEL:

P J Callaghan SC for the applicant/appellant
M J Copley for the respondent

SOLICITORS:

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

McPHERSON JA:  We have discussed the matter sufficiently to enable us to reach a decision immediately.  The reasons for it will be given later.  We agree that the appeal should be allowed and the conviction should be set aside and that there should be a new trial of the accused on this indictment.

...

McPHERSON JA:  I am authorised by my colleagues to say that the appellant will have bail until his retrial on the conditions that prevailed prior to his trial on this last occasion.

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