R v S

Case [2001] QCA 501 16 November 2001

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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 2001

DIVISION: 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 absence

of ‘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…

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 [2001] QCA 501
Case: [2001] QCA 501
Decision Date: 16 November 2001

CaseChat Overview and Summary

In the case of R v S, the appellant was convicted of multiple sexual offences against two of his step-daughters. The appellant made admissions to each girl about his sexual activity with the other, and the trial judge declined to order separate trials for the offences. The appellant challenged the decision, arguing that the trial judge erred in ruling that evidence of the commission of offences against one girl was inadmissible in the case involving the other girl, as it did not meet the criteria for similar fact evidence. This ruling impacted the admissibility of crucial evidence in the case.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v S [2001] QCA 501

Most Recent Citation

R v SAK [2004] QCA 379

Cases citing this decision · 6 of 6 shown

R v Kulwinder Singh (No 1)
[2019] NSWSC 1000 Para 69

…an Court of Criminal Appeal, 4 May 1993); R v C (1993) 60 SASR 467; HG v The Queen (1999) 197 CLR 414; [1999] HCA 2; R v S (2001) 125 A Crim R 526; [2001] QCA 501 and Bellmore v Tasmania (2006) 16 Tas R 364; [2006] TASSC 111). In these cases, expert evidence was admitted to enable to the jury to understand why ch…
R v KP; ex parte
[2006] QCA 301

…QCA 494, CA No 238 of 2004, 23 December 2004, considered R v S (2001) 125 A Crim R 527; [2001] QCA 501; CA No 136 of 2001, 16 November 2001, considered S v The Queen (1989) 168 CLR 266, followed COUNSEL: The appellant appeared on his own behalf in CA No 169 of 2005 and CA No 123 of 2006 A J Rafter SC for the resp…
R v The Queen
[2005] QDC 296 Para 2

…The significant Queensland cases are these – R v Riley [1997] QCA 277, R v Wackerow [1998] 1 QDR 197, R v S [2001] QCA 501, R v O’Keefe [2001] 1 Qd R 564, R v PS [2004] QCA 347, R v Noyes [2005] 1 QDR 169, and R v BAR [2005] QCA 80.…
R v BAR
[2005] QCA 80 Para 1

…Reference should also be made to R v S [2001] QCA 501, a case where joinder of counts in respect of two complainants was in issue, where the evidence of one girl had been held not to be admissible in the case involving another girl. Thomas JA referred to “a strong leaning in favour of severance of sexual offences…
R v SAK
[2004] QCA 379 Para 1

…aled whether P had given evidence at that earlier re-trial. If she did, there was no suggestion she gave any inconsistent evidence there. [1] R v S [2001] QCA 501…
R v Ellis
[2003] NSWCCA 319

…Joiner [2002] NSWCCA 354 R v Le [2000] NSWCCA 49 R v Leask [1999] NSWCCA 33 R v Lock (1997) 91 A Crim R 356 R v OGD (No 2) (2000) 50 NSWLR 433 R v S [2001] QCA 501 R v Veitch [1999] NSWCCA 185 R v WRC (2002) 130 A Crim R 89 Sutton v The Queen (1984) 152 CLR 528 W v R (2001) 189 ALR 633 WK v SR (1997) 22 Fam LR 5…

View all 6 citing cases →

Cases cited in this decision · 9 of 9 shown

R v Delgado-Guerra
[2001] QCA 266 Para 1

…stion is by no means fatal to admissibility, as is illustrated by Pfennig , Carne , Hooper and R v Delgado-Guerra ex parte Attorney-General [25]. [25][2001] QCA 266 at paras 21 to 22.…
R v Soma
[2001] QCA 263 Para 1

…ng of the Crown case[27]. As I see it, the letters were not properly able to be used either as relevant evidence or on credit. [27]See R v Soma [2001] QCA 263.…
R v Hooper
[1999] QCA 310 Para 1

…evidence in one group of offences was not admissible in the other, and that the two sets of offences should not have been heard together. [18][1999] QCA 310. [19] Pfennig v The Queen (1995) 182 CLR 461 at 488.…
Pfennig v the Queen
[1995] HCA 7 Para 1

…admissible in the other, and that the two sets of offences should not have been heard together. [18][1999] QCA 310. [19] Pfennig v The Queen (1995) 182 CLR 461 at 488.…
Hoch v the Queen
[1988] HCA 50

…considered Cook v R (2000) 110 A Crim R 117, considered Hoch v R (1988) 165 CLR 292, considered O’Keefe v R [2001] 1 Qd R 564, considered Pfennig v R (1995) 182 CLR 461, considered Sutton v R (1984) 152 CLR 528, considered R v Cranston [1998] 1 Qd R 159, considered R v Delgado-Guerra ex parte Attorney-General [2001]…
De Jesus v The Queen
[1986] HCA 65 Para 1

…in Sutton v R [6] was quoted with apparent approval in each separate judgment delivered, (including the dissenting reasons of Mason and Deane JJ): [1](1986) 68 ALR 1. [2]CA 109 of 1997, 9 September 1997. [3](2000) 110 A Crim R 117. [4][1988] 1 Qd R 159. [5]CA 227 of 1993, 18 November 1993. [6](1984) 152 CLR 528, 5…
Sutton v The Queen
[1984] HCA 5 Para 1

…): [1](1986) 68 ALR 1. [2]CA 109 of 1997, 9 September 1997. [3](2000) 110 A Crim R 117. [4][1988] 1 Qd R 159. [5]CA 227 of 1993, 18 November 1993. [6](1984) 152 CLR 528, 541-542.…
[1995] 2 AC 596
[1995] 2 AC 596 Para 1

…al rule in De Jesus in this State. [13] The Crimes (Amendment) Act 1997 amending s 372 of the Crimes Act 1958. [14] DPP v P [1991] 2 AC 447 and R v H [1995] 2 AC 596. [15][1998] VR 621. [16][1998] 4 VR 603. [17]See Evidence Act 1977 s 132A, inserted by Act No 3 of 1997; see also Criminal Code s 597A(1AA) inserted…
[1991] 2 AC 447
[1991] 2 AC 447 Para 1

…ve alteration of the general rule in De Jesus in this State. [13] The Crimes (Amendment) Act 1997 amending s 372 of the Crimes Act 1958. [14] DPP v P [1991] 2 AC 447 and R v H [1995] 2 AC 596. [15][1998] VR 621. [16][1998] 4 VR 603. [17]See Evidence Act 1977 s 132A, inserted by Act No 3 of 1997; see also Criminal…

Legislation cited in this decision · 3

Crimes Act 1958 (Vic)
372 2 mentions (from Para 1)
Evidence Act 1977 (Qld)
132A 2 mentions (from Para 1)
Crimes (Amendment) Act 1997 (ACT)
1 mention

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 2001
DIVISION:	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 absence of ‘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…