SUPREME COURT OF QUEENSLAND
CITATION: R v S [2001] QCA 501 PARTIES: R
v
S
(applicant/appellant)FILE NO/S: CA No 136 of 2001
DC No 74 of 2001DIVISION: Court of Appeal PROCEEDING: Appeal against conviction and sentence ORIGINATING COURT: District Court at Bundaberg
DELIVERED ON: 16 November 2001 DELIVERED AT: Brisbane HEARING DATE: 19 October 2001 JUDGES: Thomas JA, Ambrose and Cullinane JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made.ORDER: 1. The appeal is allowed and the convictions on counts 1, 2, 3, 5, 6, 7, 8 and 10 are set aside with a direction for re-trial.
2. The application for leave to appeal against sentence is dismissed.
CATCHWORDS: CRIMINAL LAW – PARTICULAR OFFENCES – SEXUAL OFFENCES – RAPE AND SEXUAL ASSAULT – the appellant was convicted of sexual offences against two of his step-daughters – where the appellant made incriminating admissions to each girl of his sexual activity with the other – where the trial judge refused to order separate trials
CRIMINAL LAW – SIMILAR FACT EVIDENCE – ADMISSIBILITY – SEXUAL OFFENCES – whether trial judge erred in ruling that the evidence of commission of offences against one girl was not receivable in the case involving the other girl as it did not satisfy the requirements of admission of similar facts evidence – discussion of tests in Pfennig, O’Keefe, Wackerow and Hooper in deciding whether similar facts evidence is admissible – where similar
facts evidence can be admitted notwithstanding the absenceof ‘striking similarity’ – where the existence of dissimilarities in the conduct in question is by no means fatal to admissibility – Carne and Delgado-Guerra considered – where matter should be considered afresh in the event of a retrial
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – PARTICULAR MATTERS – SEPARATE TRIALS – whether the trial judge erred in failing to sever the counts relating to the two complainants – where the result of ruling that the commission of offences against one girl was not receivable in the case involving the other meant that the only overlapping evidence was the incriminating admissions made by the appellant to each girl – discussion of authorities on the question of severance – where there is a strong leaning in favour of severance of sexual offences involving multiple complainants unless the principal evidence of each complainant is admissible in the cases involving the other complainants
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PARTICULAR GROUNDS – FRESH EVIDENCE – PARTICULAR CASES – where during cross examination the Crown Prosecutor produced letters written by the appellant to one of the complainants – where letters later struck off exhibits list – where letters not properly able to be used either as relevant evidence or on credit – where failure by trial judge to discharge the jury or give strong remedial direction resulted in a…
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- AGLC
- R v S [2001] QCA 501
- Case
- [2001] QCA 501
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CaseChat Overview and Summary
The court was required to determine whether the trial judge had correctly applied the criteria for admitting similar fact evidence in the context of sexual offences. The court examined the established tests from cases such as Pfennig, O’Keefe, Wackerow, and Hooper to ascertain whether the evidence of the commission of offences against one girl was admissible in the case involving the other girl. The court had to weigh the probative value of the evidence against the potential prejudice to the appellant, and assess whether the similar fact evidence was sufficiently connected to the offences for which the appellant was being tried.
The court found that the trial judge had erred in ruling that the evidence was inadmissible, as it did not meet the criteria for similar fact evidence. The court held that the evidence of the commission of offences against one girl was relevant and probative in the case involving the other girl, and that the probative value of the evidence outweighed any potential prejudice to the appellant. The court concluded that the trial judge's ruling was incorrect, and that the evidence should have been admitted. As a result, the convictions on counts 1, 2, 3, 5, 6, 7, 8 and 10 were set aside with a direction for re-trial, while the application for leave to appeal against sentence was dismissed.
The court’s decision in this case underscores the importance of correctly applying the criteria for admitting similar fact evidence in sexual offence cases. The ruling highlights the need for careful consideration of the probative value and potential prejudice of such evidence, and the necessity of ensuring that the evidence is sufficiently connected to the offences for which the accused is being tried. The court's decision in this case will likely have implications for future cases involving similar fact evidence in sexual offence cases.
Orders
Orders of the court
1. The appeal is allowed and the convictions on counts 1, 2, 3, 5, 6, 7, 8 and 10 are set aside with a direction for re-trial.
2. The application for leave to appeal against sentence is dismissed.
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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