R v S - [2002] QCA 57

SUPREME COURT OF QUEENSLAND

CITATION:

R v S [2002] QCA 57

PARTIES:

R
v
S
(appellant)

FILE NO/S:

CA 242 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against conviction

ORIGINATING COURT:

District Court at Mount Isa

DELIVERED ON:

8 March 2002

DELIVERED AT:

Brisbane

HEARING DATE:

8 February 2002

JUDGES:

McMurdo P, Thomas JA, Ambrose J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Appeal allowed, convictions on counts 1, 3, 4, 5, and 6 set aside. Direct retrial upon counts 1, 3 (indecent dealing only), 4, 5 (indecent dealing only) and 6.

CATCHWORDS:

APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASES – DISCHARGE OF JURY – appeal against conviction – where appellant convicted of sexual offences against girl under 12 years – where Crown entered nolle prosequi against count 7 at end of Crown case – whether evidence given in support of count 7 created prejudice which could not be undone by a direction from the trial judge – whether mistrial should have been granted by trial judge

APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – IN GENERAL – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES INVOLVING MISCARRIAGE OF JUSTICE – UNSATISFACTORY NATURE OF TRIAL

APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – IN GENERAL – MISDIRECTION OR NON-DIRECTION – DIRECTIONS AS TO PARTICULAR MATTERS – OTHER MATTERS – where section 93A statement – where judge gave redirection to jury regarding statement – where defence counsel requested judge to point out evidence from cross examination which was inconsistent with statement – where judge gave general direction to take into account all of the evidence – whether judge should have pointed out inconsistency to the jury

CRIMINAL LAW – EVIDENCE – EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS – CHILDREN – where child complainant – where no fresh complaint – where confusing witness statement – where confusion regarding incidents and occasions the subject of the charges – whether appellant entitled to clear indication of particulars and occasions of charges

Evidence Act (Qld) 1977, s 92A, s 93A

R v C [2000] 2 QdR 54, distinguished
R v H [1999] 2 QdR 283, considered

COUNSEL:

B G Devereaux for the appellant
C W Heaton for the respondent

SOLICITORS:

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

McMURDO P: I have read the reasons for judgment of Ambrose J in which the relevant issues are set out.

I agree generally with his reasons for concluding that there is a real possibility that the evidence led on count 7, which was abandoned by the prosecution at the end of its case, improperly influenced the jury's verdicts, despite the warning given by the trial judge. The appeal must be allowed and a retrial ordered.

I agree with Thomas JA's additional reasons and with his proposed order.

THOMAS JA: The reasons…

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 S

Details

AGLC: R v S [2002] QCA 57
Case: [2002] QCA 57
Decision Date: 8 March 2002

CaseChat Overview and Summary

The appellant in this case was convicted in the County Court of Victoria of multiple sexual offences against a girl under the age of 12. The appeal to the Court of Appeal focused on the trial judge's handling of the case, particularly the management of the jury and the admission of certain evidence. The appellant argued that the trial judge should have discharged the jury or declared a mistrial due to prejudicial evidence and alleged misdirections regarding a witness statement.

The court considered whether the evidence presented in support of count 7, which was subsequently dropped by the Crown, had prejudiced the jury to such an extent that a direction from the trial judge could not rectify the situation. The court also examined whether the trial judge should have pointed out specific inconsistencies between the witness statement and the evidence from the cross-examination to the jury. Additionally, the appellant argued that he was not provided with a clear indication of the particulars and occasions of the charges, which was essential given the confusing nature of the child complainant's statement.

The Court of Appeal found that the trial judge's handling of the case was flawed, leading to a miscarriage of justice. The prejudicial evidence and the failure to properly address the inconsistencies in the witness statement were significant errors. The court concluded that these errors could not be rectified by a direction to the jury, warranting a new trial on certain counts. The appeal was allowed, and the convictions on counts 1, 3, 4, 5, and 6 were set aside, with a direct retrial ordered on counts 1, 3 (indecent dealing only), 4, 5 (indecent dealing only), and 6.

Orders

Orders of the court

Appeal allowed, convictions on counts 1, 3, 4, 5, and 6 set aside. Direct retrial upon counts 1, 3 (indecent dealing only), 4, 5 (indecent dealing only) and 6.

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 S [2002] QCA 57
PARTIES:	R v S (appellant)
FILE NO/S:	CA 242 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against conviction
ORIGINATING COURT:	District Court at Mount Isa
DELIVERED ON:	8 March 2002
DELIVERED AT:	Brisbane
HEARING DATE:	8 February 2002
JUDGES:	McMurdo P, Thomas JA, Ambrose J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Appeal allowed, convictions on counts 1, 3, 4, 5, and 6 set aside. Direct retrial upon counts 1, 3 (indecent dealing only), 4, 5 (indecent dealing only) and 6.
CATCHWORDS:	APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASES – DISCHARGE OF JURY – appeal against conviction – where appellant convicted of sexual offences against girl under 12 years – where Crown entered nolle prosequi against count 7 at end of Crown case – whether evidence given in support of count 7 created prejudice which could not be undone by a direction from the trial judge – whether mistrial should have been granted by trial judge APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – IN GENERAL – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES INVOLVING MISCARRIAGE OF JUSTICE – UNSATISFACTORY NATURE OF TRIAL APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – IN GENERAL – MISDIRECTION OR NON-DIRECTION – DIRECTIONS AS TO PARTICULAR MATTERS – OTHER MATTERS – where section 93A statement – where judge gave redirection to jury regarding statement – where defence counsel requested judge to point out evidence from cross examination which was inconsistent with statement – where judge gave general direction to take into account all of the evidence – whether judge should have pointed out inconsistency to the jury CRIMINAL LAW – EVIDENCE – EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS – CHILDREN – where child complainant – where no fresh complaint – where confusing witness statement – where confusion regarding incidents and occasions the subject of the charges – whether appellant entitled to clear indication of particulars and occasions of charges Evidence Act (Qld) 1977, s 92A, s 93A R v C [2000] 2 QdR 54, distinguished R v H [1999] 2 QdR 283, considered
COUNSEL:	B G Devereaux for the appellant C W Heaton for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent