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R v Rutherford

R v Rutherford

Case [2004] QCA 481 17 December 2004

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Rutherford [2004] QCA 481

PARTIES:

R
v
RUTHERFORD, Scott Anthony
(appellant)

FILE NOS:

CA No 295 of 2004
DC No 4 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Gladstone

DELIVERED ON:

17 December 2004

DELIVERED AT:

Brisbane

HEARING DATE:

17 November 2004

JUDGES:

McMurdo P, Jerrard JA and Mackenzie J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Allow the appeal

2.   Set aside the verdict in the District Court

3.   Order a new trial

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – where series of three alleged offences – where verdicts of guilty on last count and not guilty on others – where appellant told not to visit complainant before last incident – where complaint made promptly after last incident – whether verdicts inconsistent

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – CONSIDERATION OF SUMMING UP AS A WHOLE – where complainant dyslexic and slow learner – where opposing evidence of nature of relationship between appellant and complainant – where opposing evidence about initiation of sexual advances – where appellant warned off between incidents constituting count 2 and count 3 – where complainant troubled mood after count 3 – where complaint made after incident constituting count 3 in answer to questions of boyfriend – where absence of direction about use of evidence of distressed state – where absence of Markuleski direction – whether direction necessary concerning a possibility inconsistent with parties’ cases – whether trial miscarried for failure to give directions or redirection

Criminal Law (Sexual Offences)Act 1978 (Qld), s 4A

Gilbert v The Queen (2000) 201 CLR 414, cited
Kilby v The Queen (1973) 129 CLR 460, cited
R v M [2001] QCA 458; CA No 126 of 2001, 26 October 2001, considered
Mackenzie v The Queen (1996) 190 CLR 348, cited
R v LSS [1998] QCA 303; CA No 128 of 1998, 2 October 1998, cited
R v Markuleski (2001) 52 NSWLR 82, considered
MFA v The Queen (2002 213 CLR 606; (2002) 193 ALR 184, cited
R v Roissetter [1984] 1 Qd R 477, applied

COUNSEL:

A J Rafter SC for the appellant
D L Meredith for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

MCMURDO P: I agree that the appeal against conviction must be allowed and a new trial ordered for the reasons given by Mackenzie J.

JERRARD JA: In this appeal I have read and respectfully agree with the reasons for judgment of Mackenzie J, and the order His Honour proposes. On a re-trial on count 4 the prosecution will need to consider…

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 Rutherford

Details

AGLC: R v Rutherford [2004] QCA 481
Case: [2004] QCA 481
Decision Date: 17 December 2004

CaseChat Overview and Summary

In the case of R v Rutherford, the appellant contested the verdicts in a criminal trial concerning a series of alleged offences. The appellant was found guilty of the last count and not guilty on the other two counts. The court was required to determine whether the verdicts were inconsistent and whether there was a miscarriage of justice due to misdirection or non-direction during the trial. The appellant also contested the absence of specific directions related to the complainant's state of mind and the nature of the relationship between the parties.

The court considered the inconsistency of the verdicts, noting that the appellant had been warned not to visit the complainant before the last incident. The court found that the verdicts were not inconsistent, as the last incident was distinct and the evidence supported a guilty verdict on that count. The court then examined whether the trial was miscarried due to the absence of certain directions. The court concluded that while the complainant was dyslexic and a slow learner, and the relationship between the parties was contested, the trial judge's summing up as a whole was adequate. The court found no error in the directions given and held that no specific direction was necessary regarding the complainant's state of mind or the initiation of sexual advances. The court also determined that there was no need for a Markuleski direction, as the possibility raised was not inconsistent with the parties' cases.

The appeal was allowed, and the verdicts set aside. The court ordered a new trial to ensure the appellant received a fair hearing. The court found that the trial did not miscarry due to the absence of specific directions and that the verdicts were consistent. The decision highlights the importance of considering the totality of the trial judge's summing up and the need for specific directions only when necessary to avoid a miscarriage of justice.

Orders

Orders of the court

1. Allow the appeal

2. Set aside the verdict in the District Court

3. Order a new trial

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Rutherford [2004] QCA 481

Most Recent Citation

R v Ashley [2005] QCA 293

Cases citing this decision · 15 of 15 shown

R v MDQ
[2023] QCA 149 Para 20

…idence in this way will usually be accompanied by a warning about the need to consider alternative explanations for the distress - see R v Rutherford [2004] QCA 481.…
R v Abraham
[2021] QDC 65 Para 8

…also remains a possibility that the complainant could be upset for reasons unknown to the defendant and not otherwise revealed in the evidence. [61][2004] QCA 481.…
R v Iongi
[2021] QCA 43 Para 18

…R 342, 343), appearing nervous or frightened ( R v Roissetter [1984] 1 Qd R 477, 480), appearing stressed and unusually quiet ( R v Rutherford [2004] QCA 481, [22]) or appearing shocked ( R v Beaver (1979) A Crim R 50, 52; R v McDougall [1983] 1 Qd R 89, 90), but such evidence may be of little value as corrobora…
R v Fax
[2020] QChC 30 Para 19

…This is lead as part of the narrative only. There may be other explanations as to why the complainant was upset at that time.[12] [12] R v Rutherford [2004] QCA 481.…
R v MMH
[2020] QDC 70 Para 1

…This is lead as part of the narrative only. There may be other explanations as to why the complainant was upset at that time.[10] [10] R v Rutherford [2004] QCA 481.…
R v RBA
[2018] QCA 338 Para 1

…considered whether it was something other than genuine, namely that it was pretended. [40]Reasons at [38]. [41]See R v Rutherford [2004] QCA 481 at [32]; Queensland Benchbook Direction 67.1.…
R v Hyde
[2017] QCA 148 Para 10

…The appellant’s argument cites R v Sailor ,[36] R v Rutherford [37] and R v Williams .[38] [36][1994] 2 Qd R 342 at 346-347. [37][2004] QCA 481 at [22] to [37]. [38][2010] 1 Qd R 276 at 286.…
R v Carney
[2016] QCA 2 Para 6

…n the particular facts and circumstances of the individual case, including the way in which each side conducted its case at the trial. [3][2004] QCA 481.…
R v WAC
[2008] QCA 151 Para 1

…R v S (2002) 129 A Crim R 339; R v LR (2006) 1 Qd R 435; [2005] QCA 368. [24] R v Rankmore; ex parte A-G (Qld) [2002] QCA 492; R v Rutherford [2004] QCA 481; R v JL [2007] QCA 131.…
R v. Walton
[2008] QCA 9 Para 1

…tent with their respective cases. It was not argued that her mood could be used as evidence that she had been indecently dealt with. R v Rutherford [2004] QCA 481 is distinguishable on the basis that, in that case, there was a real risk that a jury might, in the absence of appropriate directions, assume that the…
R v JL
[2007] QCA 131 Para 1

…counts are charged on one indictment.[7] [6] R v LR [2006] 1 Qd R 435 at 454 – 455 [64] – [65]. [7] R v M [2001] QCA 458 at [22]; R v Rutherford [2004] QCA 481 at [19]; R v LR [2006] 1 Qd R 435 at 454 [64].…
R v Mason
[2006] QCA 125 Para 1

…from the trial judge to avoid undue emphasis being placed upon the distressed condition. It can and should be distinguished from the present case. [4][2004] QCA 481; CA No 295 of 2004, 17 December 2004.…
R v GS
[2005] QCA 376

…R v RH [2004] QCA 225; [2005] 1 Qd R 180, referred to R v Roisetter [1984] 1 Qd R 477, referred to R v Rutherford [2004] QCA 481; CA No 295 of 2004, 17 December 2004, discussed Robinson v The Queen (1999) 197 CLR 162, referred to COUNSEL: P E Smith for the appellant M J Copley for the respondent SOLICITORS: Ken O…
R v LR
[2005] QCA 368 Para 22

…nds, in my view, against the giving of any such direction." [18] R v M [2001] QCA 458; CA No 126 of 2001, 26 October 2001 at [22]; R v Rutherford [2004] QCA 481; CA No 295 of 2004, 17 December 2004 at [19] - [21]. [19][2003] VSCA 200 at [32]; (2003) 8 VR 50 at 59 (citations omitted). [20][2003] VSCA 200 at [5]; (…
R v Ashley
[2005] QCA 293 Para 22

…[3] R v M [2001] QCA 458; CA No 126 of 2001, 26 October 2001 at [22]; R v Rutherford [2004] QCA 481; CA No 295 of 2004, 17 December 2004 at [19] - [21]. It may be noted that appellate courts in Victoria and Western Australia have recently questioned whether there is any utility at all in such a direction because…

View all 15 citing cases →

Cases cited in this decision · 7 of 7 shown

MFA v The Queen
[2002] HCA 53

…f 1998, 2 October 1998, cited R v Markuleski (2001) 52 NSWLR 82, considered MFA v The Queen (2002 213 CLR 606; (2002) 193 ALR 184, cited R v Roissetter [1984] 1 Qd R 477, applied COUNSEL: A J Rafter SC for the appellant D L Meredith for the respondent SOLICITORS: Legal Aid Queensland for the appellant Director…
R v M
[2001] QCA 458 Para 1

…In R v M [2001] QCA 458, McPherson JA accepted that it is undesirable to elevate the proposition that such a warning should be given the status of a binding rule, while acknowledging that, in some, perhaps many, cases it is desirable that such a direction be given, even though the trial judge cannot tell in advan…
R v Markuleski
[2001] NSWCCA 290 Para 1

…nce generally. It was submitted that, as the case involved word against word, such a direction was desirable. Reliance was placed on R v Markuleski (2001) 52 NSWLR 82 where Spigelman CJ said, at 121, that in light of the number of cases in which Courts of Criminal Appeal had acted on the basis that the jury may have…
Gilbert v The Queen
[2000] HCA 15 Para 1

…There is no reason to suppose that the jury would not have followed and acted on the clear direction ( Gilbert v The Queen (2000) 201 CLR 414). The direction precluded them from using the fact that the complaint was made either as evidence of rape or as a buttress for the complainant’s credibility; its only use was a…
R v LSS
[1998] QCA 303 Para 1

…int has been made may show consistency of the complainant’s conduct and thereby buttress her credit ( Kilby v The Queen (1973) 129 CLR 460; R v LSS [1998] QCA 303). Inclusion of the words “in the circumstances here” by the very experienced trial judge in juxtaposition to the reference to the concept of buttressin…
Mackenzie v The Queen
[1996] HCA 35 Para 1

…is for a jury properly instructed, to come to different verdicts in the case of counts 1 and 2 from that reached on count 3 ( Mackenzie v The Queen (1996) 190 CLR 348 at 366). The different verdicts are not an affront to logic and commonsense.…
Kilby v The Queen
[1973] HCA 30 Para 1

…since the fact that a complaint has been made may show consistency of the complainant’s conduct and thereby buttress her credit ( Kilby v The Queen (1973) 129 CLR 460; R v LSS [1998] QCA 303). Inclusion of the words “in the circumstances here” by the very experienced trial judge in juxtaposition to the reference to t…

Legislation cited in this decision · 1

Criminal Law (Sexual Offences) Act 1978 (Qld)
4A 2 mentions (from Para 1)

CITATION:	R v Rutherford [2004] QCA 481
PARTIES:	R v RUTHERFORD, Scott Anthony (appellant)
FILE NOS:	CA No 295 of 2004 DC No 4 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Gladstone
DELIVERED ON:	17 December 2004
DELIVERED AT:	Brisbane
HEARING DATE:	17 November 2004
JUDGES:	McMurdo P, Jerrard JA and Mackenzie J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Allow the appeal 2. Set aside the verdict in the District Court 3. Order a new trial
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – where series of three alleged offences – where verdicts of guilty on last count and not guilty on others – where appellant told not to visit complainant before last incident – where complaint made promptly after last incident – whether verdicts inconsistent CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – CONSIDERATION OF SUMMING UP AS A WHOLE – where complainant dyslexic and slow learner – where opposing evidence of nature of relationship between appellant and complainant – where opposing evidence about initiation of sexual advances – where appellant warned off between incidents constituting count 2 and count 3 – where complainant troubled mood after count 3 – where complaint made after incident constituting count 3 in answer to questions of boyfriend – where absence of direction about use of evidence of distressed state – where absence of Markuleski direction – whether direction necessary concerning a possibility inconsistent with parties’ cases – whether trial miscarried for failure to give directions or redirection Criminal Law (Sexual Offences)Act 1978 (Qld), s 4A Gilbert v The Queen (2000) 201 CLR 414, cited Kilby v The Queen (1973) 129 CLR 460, cited R v M [2001] QCA 458; CA No 126 of 2001, 26 October 2001, considered Mackenzie v The Queen (1996) 190 CLR 348, cited R v LSS [1998] QCA 303; CA No 128 of 1998, 2 October 1998, cited R v Markuleski (2001) 52 NSWLR 82, considered MFA v The Queen (2002 213 CLR 606; (2002) 193 ALR 184, cited R v Roissetter [1984] 1 Qd R 477, applied
COUNSEL:	A J Rafter SC for the appellant D L Meredith for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent