R v R

Case [1998] QCA 83 6 May 1998

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IN THE COURT OF APPEAL [1998] QCA 083

SUPREME COURT OF QUEENSLAND
C.A. No 445 of 1997
C.A. No. 17 of 1998
Brisbane

[R. v. R ]

T H E Q U E E N
v.
R
(Applicant) Appellant

Fitzgerald P
Davies JA
Dowsett J

Judgment delivered 6 May 1998

Separate reasons for judgment of each member of the Court, Davies J.A. and Dowsett J. concurring as to the orders made, Fitzgerald P. dissenting in part.

APPEAL AGAINST CONVICTION ON ALL THREE COUNTS ALLOWED AND CONVICTIONS QUASHED.
VERDICT OF NOT GUILTY ENTERED ON COUNT 1.
ORDER A RETRIAL LIMITED TO CHARGES OF INDECENT ASSAULT ON EACH OF COUNTS 2 AND 3.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS: CRIMINAL LAW - sexual offences - child complainant - where numerous and various counts of sexual misconduct alleged - lack of particularity of allegations with respect to each count - duplicity of evidence.

Evidence - similar facts - sexual offences involving young child - evidence of uncharged misconduct - directions to the jury on proper use - whether trial Judge failed to identify and distinguish between
evidence going to offences charged and evidence of other misconduct.
Verdicts - unsafe and unsatisfactory - whether trial Judge’s management of the jury resulted in the exertion of undue pressure upon jury members to reach a verdict.
Re-trial - whether internal inconsistencies in complainant’s evidence so direct and fundamental as to render any conviction unsafe - whether discrepancy between evidence of complainant and medical evidence so irreconcilable as to render any conviction unsafe.
S v The Queen (1989) 168 CLR 266
Mackay v The Queen (1977) 136 CLR 465

Counsel: Mr S. Hamlyn-Harris for applicant/appellant

Mrs L. Clare for respondent

Solicitors:Legal Aid Queensland for applicant/appellant
Director of Public Prosecutions Queensland for respondent

Hearing date: 23 March 1998

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 6 May 1998

The circumstances giving rise to this appeal are set out by Dowsett J. I agree with his Honour that the appeals against conviction must be allowed on both counts of rape and the count of attempted unlawful anal intercourse with a circumstance of aggravation. All counts relate to alleged sexual misconduct towards a child who was then six years of age in the period between 1 October 1996 and 20 March 1997.

His Honour’s reasons for judgment set out the issues and the material evidence, and contain an extensive discussion of the appellant’s complaints. I am in general agreement with his Honour’s reasons for concluding that a verdict of acquittal should be entered on the first rape count because the prosecution did not, and cannot, meet its obligation to provide the particulars to which the appellant was entitled, and would be entitled if that count were to proceed.

However, I do not agree that counts 2 and 3 were, or can be, adequately particularised.

The prosecution difficulty stems from its tactical objective of adducing a history of sexual misconduct by the appellant towards the child which…

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.

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Details

AGLC: R v R [1998] QCA 83
Case: [1998] QCA 83
Decision Date: 6 May 1998

CaseChat Overview and Summary

In this case, the Court of Appeal allowed the appeals against conviction on all three counts, quashed the convictions, and entered a verdict of not guilty on count 1. The Court ordered a retrial limited to charges of indecent assault on counts 2 and 3. The Court also refused the application for leave to appeal against sentence. The Court found that the trial miscarried due to the lack of particularity of the allegations with respect to each count, and the duplicity of evidence. The Court held that the appellant was not provided with adequate particulars of the offences charged, which resulted in an unfair trial and an unsafe verdict. The Court also found that the trial judge failed to identify and distinguish between evidence going to the offences charged and evidence of other misconduct. The Court concluded that the convictions on counts 2 and 3 were also unsafe and unsatisfactory due to internal inconsistencies in the complainant's evidence and the discrepancy between her evidence and the medical evidence. The Court considered that a new trial on counts 2 and 3 would be limited to charges of indecent assault. The Court also commented on the need for an extensive training programme for those involved in interviewing child complainants.

The Court of Appeal found that the trial miscarried due to the lack of particularity of the allegations and the duplicity of evidence. The Court held that the appellant was not provided with adequate particulars of the offences charged, which resulted in an unfair trial and an unsafe verdict. The Court also found that the trial judge failed to identify and distinguish between evidence going to the offences charged and evidence of other misconduct. The Court concluded that the convictions on counts 2 and 3 were also unsafe and unsatisfactory due to internal inconsistencies in the complainant's evidence and the discrepancy between her evidence and the medical evidence. The Court considered that a new trial on counts 2 and 3 would be limited to charges of indecent assault. The Court also commented on the need for an extensive training programme for those involved in interviewing child complainants.

Orders