R v Qd

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.

‑‑‑‑‑

CaseChat Overview and Summary

The case before the court was an appeal by the appellant, who was convicted of indecent treatment of a child under 16. The child in question was under 12 years old, and the complainant was five years old. The appellant's appeal centred on the contention that the complainant's evidence was such that it could have led the jury to believe that the appellant had previously been imprisoned for a similar act committed on the complainant. Neither counsel nor the trial judge had directed the jury to disregard this potentially prejudicial evidence.

The legal issues before the court were whether the appellant could have received a fair trial given the circumstances and whether there had been a miscarriage of justice. The court needed to assess whether the prejudicial evidence was such that it could not have been excluded from the jury's consideration and whether this led to a situation where the appellant could not have received a fair trial. The court considered relevant statutory provisions and prior case law, including the Evidence Act 1977 (Qld) and decisions such as Nudd v The Queen and TKWJ v The Queen. The court also applied the decision in Weiss v The Queen in its analysis.

The court found that the prejudicial nature of the evidence could not be disregarded and that it was likely to have had a significant impact on the jury's deliberations. Given that no direction was sought or given to the jury to disregard this evidence, the court concluded that the appellant could not have received a fair trial. Consequently, the court determined that a miscarriage of justice had occurred, warranting the setting aside of the conviction and the ordering of a new trial. The appeal was allowed, and the conviction was set aside, with a new trial ordered.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

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