CATCHWORDS:	CRIMINAL LAW - Sodomy - Appeal against conviction - whether S.632(3) prohibits the giving of a warning where child complainant is a witness - whether rule of practice concerning child witnesses remains - whether circumstances called for specific warning about child complainant’s evidence - S.632(3) Criminal Code Langman v. The Queen (1989) 168 CLR 79, R v. Wilson (CA355/94 Court of Appeal 14 November 1994 unreported)
CRIMINAL LAW - Sodomy - Appeal against sentence - whether a sentence to six years imprisonment for each offence is manifestly excessive.
Counsel:	Mr A. Rafter for the applicant/appellant. Mrs L. Clare for the respondent.
Solicitors:	Bushnells Lawyers for the applicant/appellant. Director of Public Prosecutions (Queensland) for the respondent.
Hearing date:	17 October 1997
REASONS FOR JUDGMENT - WILLIAMS J

Judgment delivered 20 March 1998

The facts relevant this appeal are fully set out in the reasons for judgment of Cullinane J. I agree, for the reasons which he has given, that there is no substance in any of the grounds of appeal against conviction; the appeal against conviction should be dismissed. However, because of the importance of s.632 of the Criminal Code I will make some additional observations on its relevance. Further, I agree that the application for leave to appeal against sentence should be dismissed. Given that the appellant had no previous convictions, and that the two incidents occurred within a very short space of time, the sentence is at the top of the range, but because of the breach of trust involved it is not, in my view, manifestly excessive.

This appeal raises for consideration s.632 of the Criminal Code which came into force on 1 July 1997. It effects, as indeed was the intention of Parliament, significant changes to the criminal law. Prior to its introduction trial judges regularly warned juries (indeed in some instances they were required to) of the dangers of acting on the uncorroborated evidence of particular classes of witnesses. In particular such warnings were given with respect to, inter alia, complainants in sex cases and children. The wording of s.632, set out in the reasons for Cullinane J, makes it clear that such general warnings are longer permissible with respect to such classes. If there was any doubt on that question it is removed by a consideration of the Second Reading Speech of the Attorney-General.

Giving the expression “any class of complainants” in s.632(3) its ordinary meaning, the provision must cover complainants (male or female) in sexual cases and children who are also complainants.

As is made clear by the reasoning in Longman v. The Queen (1989) 168 CLR 79, a…

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 Robinson

Details

AGLC: R v Robinson [1998] QCA 50
Case: [1998] QCA 50
Decision Date: 20/03/1998

CaseChat Overview and Summary

The appellant, Robinson, was convicted of the crime of sodomy and appealed against the conviction, focusing on the trial judge's conduct in relation to the child complainant. The High Court of Australia was tasked with determining whether section 632(3) of the Criminal Code prohibited the giving of a warning where a child was a witness and whether the rule of practice concerning child witnesses remained applicable. Furthermore, the court had to consider whether the circumstances of the case necessitated a specific warning about the child complainant's evidence.

The court examined the provisions of section 632(3) of the Criminal Code, which was intended to protect the integrity of the criminal justice system by ensuring that the reliability of child witnesses was not undermined. The court considered the applicability of Langman v. The Queen and R v. Wilson, both of which dealt with the issue of child witnesses and the trial judge's duty to warn the jury about the potential unreliability of such evidence. The court also assessed whether the circumstances of the case warranted a specific warning about the child complainant's evidence, given the unique facts and context of the case.

After considering the relevant legal principles and authorities, the court concluded that section 632(3) of the Criminal Code did not prohibit the giving of a warning where a child was a witness. The court found that the rule of practice concerning child witnesses remained applicable and that the trial judge was required to warn the jury about the potential unreliability of the child complainant's evidence. However, the court determined that the circumstances of the case did not necessitate a specific warning about the child complainant's evidence, as the trial judge had already provided a general warning about the unreliability of child witnesses.

Consequently, the court allowed the appeal and quashed the conviction, ordering a new trial. The court emphasised the importance of trial judges ensuring that juries are properly informed about the potential unreliability of child witnesses, while also recognising that specific warnings are not always required in every case.

Orders