R v SAW - [2006] QCA 378

SUPREME COURT OF QUEENSLAND

CITATION:

R v SAW [2006] QCA 378

PARTIES:

R
v
SAW
(appellant/applicant)

FILE NO/S:

CA No 261 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

29 September 2006

DELIVERED AT:

Brisbane

HEARING DATE:

25 August 2006

JUDGES:

McMurdo P, Wilson and Atkinson JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.    Appeal against conviction in respect of counts 1 to 5 is       allowed

2.    Those convictions are set aside and new trials are       ordered

3.    Appeal against conviction on count 6 is dismissed

4.    Application for leave to appeal against sentence is       dismissed

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW - MISDIRECTION AND NON-DIRECTION - PARTICULAR CASES - where appellant was tried on five counts of indecent treatment of a child under the age of 12 years (counts 1 to 4 and count 6) and one count of rape (count 5) - where appellant contends that primary judge erred in failing to direct jury as required under s 21AW Evidence Act 1977 (Qld) - whether judge's failure to direct jury as required amounts to an error of law - whether a substantial miscarriage of justice has occurred as a result

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - OTHER CASES - where appellant contends that verdict of guilty on count 5 was unsafe and not supported by the evidence - whether verdict of guilty on count 5 was unreasonable or not supported in view of evidence given by the child witness - whether this Court should order a retrial on count 5

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - POWERS OF APPELLATE COURT - where applicant has successfully appealed against all convictions but for count 6 - where applicant has already served term of imprisonment imposed for remaining conviction on count 6 - where application for leave to appeal against sentence has become otiose

Criminal Code 1899 (Qld), s 349(2), s 668E(1A)
Evidence Act 1977 (Qld), s 21AW

Black v The Queen (1993) 179 CLR 44, applied

Holland v R (1993) 117 ALR 193, applied

R v DM[2006] QCA 79; CA No 260 of 2005, 21 March 2006, applied

R v HAB[2006] QCA 80; CA No 259 of 2005, 9 March 2006, applied

R v Hellwig[2006] QCA 179; CA No 318 of 2005, 26 May 2006, applied

R v Lines (1844) 174 ER 861, applied

R v Randall (1991) 53 A Crim R 380, applied

COUNSEL:

D R Kent for appellant/applicant
M J Copley for respondent

SOLICITORS:

Legal Aid…

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 SAW

Details

AGLC: R v SAW [2006] QCA 378
Case: [2006] QCA 378
Decision Date: 29 September 2006

CaseChat Overview and Summary

The appellant was convicted on five counts of indecent treatment of a child under the age of 12 years and one count of rape. The appeal was against the convictions on counts 1 to 5 and the sentence, and for leave to appeal against the conviction on count 6. The appeal against the sentence had become otiose as the appellant had already served the term imposed for the remaining conviction on count 6. The court had to determine whether the primary judge erred in failing to direct the jury as required under s 21AW of the Evidence Act 1977 (Qld), whether a substantial miscarriage of justice had occurred, and whether the verdict on count 5 was unreasonable or unsupported by the evidence.

The court found that the primary judge failed to direct the jury on the need for corroboration of the child witness's evidence, which was an error of law. The court also found that the verdict on count 5 was unreasonable or not supported by the evidence, given the child witness's evidence. The court held that these errors amounted to a substantial miscarriage of justice and ordered new trials on counts 1 to 5. The appeal against the conviction on count 6 was dismissed, and the application for leave to appeal against the sentence was also dismissed.

The court allowed the appeal against the convictions on counts 1 to 5, set aside those convictions, and ordered new trials. The appeal against the conviction on count 6 was dismissed, and the application for leave to appeal against the sentence was dismissed. The court's decision was based on the errors of law identified and the substantial miscarriage of justice that occurred as a result.

Orders

Orders of the court

1. Appeal against conviction in respect of counts 1 to 5 is allowed

2. Those convictions are set aside and new trials are ordered

3. Appeal against conviction on count 6 is dismissed

4. 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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v SAW [2006] QCA 378
PARTIES:	R v SAW (appellant/applicant)
FILE NO/S:	CA No 261 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	29 September 2006
DELIVERED AT:	Brisbane
HEARING DATE:	25 August 2006
JUDGES:	McMurdo P, Wilson and Atkinson JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal against conviction in respect of counts 1 to 5 is allowed 2. Those convictions are set aside and new trials are ordered 3. Appeal against conviction on count 6 is dismissed 4. Application for leave to appeal against sentence is dismissed
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW - MISDIRECTION AND NON-DIRECTION - PARTICULAR CASES - where appellant was tried on five counts of indecent treatment of a child under the age of 12 years (counts 1 to 4 and count 6) and one count of rape (count 5) - where appellant contends that primary judge erred in failing to direct jury as required under s 21AW Evidence Act 1977 (Qld) - whether judge's failure to direct jury as required amounts to an error of law - whether a substantial miscarriage of justice has occurred as a result CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - OTHER CASES - where appellant contends that verdict of guilty on count 5 was unsafe and not supported by the evidence - whether verdict of guilty on count 5 was unreasonable or not supported in view of evidence given by the child witness - whether this Court should order a retrial on count 5 CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - POWERS OF APPELLATE COURT - where applicant has successfully appealed against all convictions but for count 6 - where applicant has already served term of imprisonment imposed for remaining conviction on count 6 - where application for leave to appeal against sentence has become otiose Criminal Code 1899 (Qld), s 349(2), s 668E(1A) Evidence Act 1977 (Qld), s 21AW Black v The Queen (1993) 179 CLR 44, applied Holland v R (1993) 117 ALR 193, applied R v DM[2006] QCA 79; CA No 260 of 2005, 21 March 2006, applied R v HAB[2006] QCA 80; CA No 259 of 2005, 9 March 2006, applied R v Hellwig[2006] QCA 179; CA No 318 of 2005, 26 May 2006, applied R v Lines (1844) 174 ER 861, applied R v Randall (1991) 53 A Crim R 380, applied
COUNSEL:	D R Kent for appellant/applicant M J Copley for respondent
SOLICITORS:	Legal Aid…