R v R - [2003] QCA 285

SUPREME COURT OF QUEENSLAND

CITATION:

R v R [2003] QCA 285

PARTIES:

R
v
R
(appellant)

FILE NO/S:

CA No 62 of 2003
DC No 366 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

11 July 2003

DELIVERED AT:

Brisbane

HEARING DATE:

24 June 2003

JUDGES:

Davies, Williams and Jerrard JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeal against conviction dismissed
2. Grant leave to appeal against sentence
3. Substitute a sentence of eight and a half years imprisonment for the 10 year sentence originally imposed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL – IMPROPER ADMISSION OF EVIDENCE – where complainant gave evidence of acts of violence committed by the appellant on her and her sisters – where learned trial judge allowed prosecution to lead more detailed evidence of acts of violence within the domestic environment – where appellant complains that this evidence was irrelevant and highly prejudicial to the appellant – where case authority demonstrates that instances of violence in the domestic environment are relevant to charges of sexual offences committed within that environment – whether miscarriage of justice occurred

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – MISCARRIAGE OF JUSTICE – POWER TO DISMISS APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE – PARTICULAR MATTERS – where prejudicial effect of evidence must be balanced against its probative force – where prosecution required to establish that evidence led at trial of acts of violence was relevant and admissible – where appellant complains that prejudicial effect of evidence was increased by learned trial judge reading evidence in summing up – whether court should exercise its powers pursuant to s 668(1A) Criminal Code 1899 (Qld) – whether substantial miscarriage of justice occurred by conviction of the appellant

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL – MISDIRECTION AND NON-DIRECTION – GENERALLY – where appellant complains that learned trial judge failed to give a proper Longman direction – where learned trial judge warned the jury that it was dangerous to convict on the unsupported evidence of the complainant – where jury was then directed that it should look for evidence to support the complainant’s evidence and was then read that supporting evidence – whether learned trial judge negated the effect of the warning by reading this evidence immediately after giving warning

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL – MISDIRECTION AND NON-DIRECTION – GENERALLY – where learned trial judge gave careful directions as to how the jury should deal with the evidence of uncharged sexual acts and…

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 [2003] QCA 285
Case: [2003] QCA 285
Decision Date: 11 July 2003

CaseChat Overview and Summary

In the case of R v R, the appellant appealed against both his conviction and sentence. The appellant was convicted of multiple sexual offences against a complainant who was his stepdaughter at the time of the offending. The court was required to consider whether the trial judge erred in admitting evidence of other acts of violence committed by the appellant against the complainant and her sisters, and whether this led to a miscarriage of justice. The appellant also argued that the trial judge failed to properly direct the jury on the relevance and use of the evidence, and that the sentence imposed was manifestly excessive.

The court examined the evidence of other acts of violence and concluded that such evidence was relevant to the charges of sexual offences within the domestic environment. The court held that the prejudicial effect of the evidence was balanced by its probative force, and that the trial judge did not err in admitting it. The court also found that the trial judge gave proper directions to the jury, including warning them about the dangers of convicting on the unsupported evidence of the complainant, and that the directions were not negated by the subsequent reading of supporting evidence. The court further determined that the sentence of 10 years imprisonment was not manifestly excessive, given the severity and duration of the offending behaviour.

The appeal against conviction was dismissed, but leave was granted to appeal against the sentence. The court substituted a sentence of eight and a half years imprisonment for the 10 year sentence originally imposed. This sentence was considered more appropriate given the authorities and the circumstances of the offending.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Grant leave to appeal against sentence

3. Substitute a sentence of eight and a half years imprisonment for the 10 year sentence originally imposed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v R [2003] QCA 285
PARTIES:	R v R (appellant)
FILE NO/S:	CA No 62 of 2003 DC No 366 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	11 July 2003
DELIVERED AT:	Brisbane
HEARING DATE:	24 June 2003
JUDGES:	Davies, Williams and Jerrard JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal against conviction dismissed 2. Grant leave to appeal against sentence 3. Substitute a sentence of eight and a half years imprisonment for the 10 year sentence originally imposed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL – IMPROPER ADMISSION OF EVIDENCE – where complainant gave evidence of acts of violence committed by the appellant on her and her sisters – where learned trial judge allowed prosecution to lead more detailed evidence of acts of violence within the domestic environment – where appellant complains that this evidence was irrelevant and highly prejudicial to the appellant – where case authority demonstrates that instances of violence in the domestic environment are relevant to charges of sexual offences committed within that environment – whether miscarriage of justice occurred CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – MISCARRIAGE OF JUSTICE – POWER TO DISMISS APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE – PARTICULAR MATTERS – where prejudicial effect of evidence must be balanced against its probative force – where prosecution required to establish that evidence led at trial of acts of violence was relevant and admissible – where appellant complains that prejudicial effect of evidence was increased by learned trial judge reading evidence in summing up – whether court should exercise its powers pursuant to s 668(1A) Criminal Code 1899 (Qld) – whether substantial miscarriage of justice occurred by conviction of the appellant CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL – MISDIRECTION AND NON-DIRECTION – GENERALLY – where appellant complains that learned trial judge failed to give a proper Longman direction – where learned trial judge warned the jury that it was dangerous to convict on the unsupported evidence of the complainant – where jury was then directed that it should look for evidence to support the complainant’s evidence and was then read that supporting evidence – whether learned trial judge negated the effect of the warning by reading this evidence immediately after giving warning CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL – MISDIRECTION AND NON-DIRECTION – GENERALLY – where learned trial judge gave careful directions as to how the jury should deal with the evidence of uncharged sexual acts and…