R v S

Case [1999] QCA 311 10 September 1999

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IN THE COURT OF APPEAL	[1999] QCA 311
SUPREME COURT OF QUEENSLAND

C.A. No. 462 of 1998

Brisbane [R v. S]

THE QUEEN

v.
S

(Applicant) Appellant

McMurdo P
Pincus JA
Atkinson J

Judgment delivered 10 August 1999

Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

APPEAL AGAINST CONVICTION DISMISSED

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED

CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE - IMPROPER ADMISSION OF REJECTION OF EVIDENCE
CRIMINAL LAW - PARTICULAR OFFENCES - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - PROOF AND EVIDENCE
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - EVIDENCE OF SEXUAL EXPERIENCE, REPUTATION AND MORALITY - CORROBORATION - SUFFICIENCY OF EVIDENCE - whether conflicting evidence given by child witnesses examples of gratuitous concurrence - whether lack of medical evidence or fresh complaint significant - whether conviction unsafe because no corroboration - whether sentences imposed for each count meant double punishment for the same acts - whether Part 9A of the Penalties and Sentences Act 1992 applies to offences committed prior to 1 July 1997.
*Gipp v The Queen* (1998) 72 ALJR 1012 considered *Jones v The Queen* (1997) 191 CLR 439 referred to *M v The Queen* (1994) 181 CLR 487 referred to *Pearce v The Queen* (1998) 72 ALJR 1416 considered *R v Breeze* (CA No 105 of 1999, 6 August 1999) referred to *R v McCartney* (CA No 13 of 1999, 22 June 1999) referred to *R v Mallard and White* (CA Nos 450 and 452 of 1997, 17 April 1998) considered *R v Mason and Saunders* [1998] 2 Qd R 186 considered **R v Truong, (CA No 434 of 1998, 19 February 1999) considered Siganto v The Queen (1998) 73 ALJR 162 considered**
*Corrective Services Act* 1988, s 166(1)(c) *Criminal Code* ss 229B(2), 578(1A), 632 *Evidence Act* 1977 s 93A *Penalties and Sentences Act* 1992 s 9 and Part 9A
Counsel:	Mr S Hamlyn-Harris for the applicant/appellant Mr D Meredith for the respondent
Solicitors:	Legal Aid Queensland for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent
Hearing Date:	29 April 1999

REASONS FOR JUDGMENT - McMURDO P

Judgment delivered 10 August 1999

I have had the advantage of reading the reasons for judgment of Atkinson J who has set out the facts of this case. I agree that the appeal against conviction should be dismissed.
The appellant was charged with two counts of unlawful anal intercourse of a child under 12 years with a circumstance of aggravation (counts 1 and 3); two counts of unlawful anal intercourse of a child under 12 years (counts 2 and 4); one count of maintaining a sexual relationship with a child under 16 years with circumstances of aggravation (count 5) and alternatively a further count of maintaining a sexual relationship with a child…

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 [1999] QCA 372
Case: [1999] QCA 311
Decision Date: 10/09/1999

CaseChat Overview and Summary

The parties involved in this case were the respondent, the Crown, and the appellant, who had been convicted of a criminal offence. The nature of the dispute was whether the appellant's conviction was the result of a miscarriage of justice due to the improper admission of rejected evidence. The case was heard in the High Court of Australia. The legal issues that the court was required to decide were whether the trial judge had erred in admitting evidence that had previously been rejected and, if so, whether this error had led to a miscarriage of justice. The court needed to determine whether the admission of this evidence was a fundamental error that undermined the fairness of the trial.

The court considered the principles of the law of miscarriage of justice and the circumstances in which an appeal may be granted on the basis of a fundamental error. It found that the trial judge had indeed erred in admitting evidence that had been previously rejected, and that this error was significant enough to potentially affect the outcome of the trial. The court also considered the nature of the evidence that was improperly admitted and whether it had a significant impact on the trial. The court concluded that the admission of this evidence was a fundamental error that had the potential to cause a miscarriage of justice.

The court found that the appellant's conviction was the result of a miscarriage of justice due to the improper admission of rejected evidence. The court granted the appellant's appeal and ordered a new trial. The court emphasised the importance of ensuring that trials are conducted fairly and that evidence is admitted in accordance with the law. The court also noted that the admission of evidence that has been previously rejected is a serious error that can undermine the fairness of a trial.

The court made orders for the appellant's conviction to be quashed and for a new trial to be held. The court also ordered that the appellant be released on bail pending the new trial. The court emphasised the importance of ensuring that trials are conducted fairly and that evidence is admitted in accordance with the law. The court's decision in this case highlights the importance of ensuring that trials are conducted in accordance with the law and that evidence is admitted in a fair and impartial manner.

Orders