R v R - [1997] QCA 277

IN THE COURT OF APPEAL	[1997] QCA 277
SUPREME COURT OF QUEENSLAND

C.A. No. 109 of 1997

Brisbane

Before	Fitzgerald P. Moynihan J. Dowsett J.
[R. v. R]

THE QUEEN

v.
R

(Applicant) Appellant
Fitzgerald P
Moynihan SJA
Dowsett J

Judgment delivered	9 September 1997
Judgment of the Court	Separate reasons for judgment of each member

of the Court all concurring as to the orders made.

A	ppeal allowed. Conviction quashed. Retrial ordered.
CATCHWORDS:	CRIMINAL LAW. Appeal against conviction on 8 counts of various sexual offences against three children. Evidence - propensity evidence - similar fact evidence. Observations as to the test for admissibility of similar fact evidence in such cases - when necessary to have reference to that test. Pfennig v R (1994-5) 182 CLR 461; Hoch v The Queen (1988) 165 CLR 292; De Jesus v The Queen (1987) 61 ALJR 1;Walcherow (CA No. 62 of 1996; 20August 1996; unreported)
Counsel:	Mr D. Lynch for the appellant Mr P. Rutledge for the respondent
Solicitors:	Legal Aid Office for the appellant Director of Public Prosecutions for the Crown
Hearing date:	4 June 1997

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 9 September 1997

The thirty-six counts in the indictment to which the appellant pleaded not guilty are set out in the reasons for judgment of Dowsett J. As his Honour there explains, the trial was confined on the fourth day to the last 15 counts on the indictment. Counts 22 to 29 alleged offences against L, counts 30 to 33 alleged offences against J, and counts 34 to 36 alleged offences against N. The jury disagreed in respect of counts 22 to 24, 26 to 29 and 36. The appellant was convicted of only one of eight counts in respect of L, two of three counts in respect of N, and all four counts relating to J. His convictions were for the following offences:

count 25 - attempted carnal knowledge by anal intercourse of a child under 12 years who was in
his care (L);
count 30 - maintaining a sexual relationship with a child under 12 years who was in his care (J);
count 31 - indecent dealing with a child under 12 years who was in his care (J);
count 32 - indecent dealing with a child under 12 years who was in his care (J);
count 33 - indecent dealing with a child under 12 years who was in his care (J);
count 34 - indecent dealing with a child under 12 years (N); and
count 35 - indecent dealing with a child under 12 years (N).

One difficulty which arises from the course which was followed relates to the joinder of the counts alleging offences against L and J and N in a single indictment. Ordinarily at least, that should not be done with counts alleging sexual offences unless all the evidence in relation to all the alleged offences is admissible in respect of each count.[1] That leads to the…

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.

Continue reading R v R

Details

AGLC: R v R [1997] QCA 277
Case: [1997] QCA 277
Decision Date: 9/09/1997

CaseChat Overview and Summary

In the case of R v R, the appellant faced eight counts of various sexual offences against three children. The case was heard in the relevant appellate court, where the primary focus was on the admissibility of similar fact evidence in cases involving sexual offences against children. The court had to determine the appropriate legal test for assessing such evidence, particularly in light of established judicial precedents.

The court examined the legal principles surrounding the admissibility of similar fact evidence, referencing key cases such as Pfennig v R, Hoch v The Queen, and De Jesus v The Queen. The primary issue was whether the trial judge had correctly applied the test for admitting similar fact evidence in the context of the present charges. The court also considered the case of Walcherow, which provided further guidance on the matter.

In delivering its judgment, the court clarified the legal test for admitting similar fact evidence in cases involving sexual offences against children. The court found that the trial judge had not applied the correct test, leading to an error in the admission of certain evidence. Consequently, the court quashed the conviction on the grounds that the trial judge had misapplied the legal test for similar fact evidence, resulting in a miscarriage of justice. The case was remitted to the trial court for reconsideration in light of the correct legal principles.

Orders