R v SCA

[2001] QCA 199

SUPREME COURT OF QUEENSLAND

CITATION:

R v SCA [2001] QCA 199

PARTIES:

R
v
SCA
(appellant/applicant)

FILE NO/S:

CA No 366 of 2000
DC No 3519 of 2000
DC No 3520 of 2000

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction and Sentence
Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

1 June 2001

DELIVERED AT:

Brisbane

HEARING DATE:

3 May 2001

JUDGES:

McPherson and Thomas JJA, Chesterman J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Appeal allowed.

2.   Conviction and verdict set aside.

3.   Direct that verdict and judgment of acquittal be entered on counts 2, 3 and 4 of the indictment.

4.   The application for leave to appeal against sentence is refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF THE COURT BELOW – IN GENERAL – WRONG PRINCIPLES – where the trial judge allowed cross-examination of the accused as to previous convictions – whether the trial judge should have taken into account the delay in complaint – whether the prejudicial effect on the defence outweighed the potential damage to the prosecution’s case

CRIMINAL LAW – PARTICULAR OFFENCES – OTHER OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – RAPE AND SEXUAL ASSAULT – where the complainant was under the age of fourteen at the time of the facts relevant to the complaint

Child Protection Act 1999 (Qld)
Criminal Code (Qld), s 695A
Criminal Law Sexual Offences Act 1978 (Qld), s 6
Criminal Offence Victims Act 1995 (Qld), s 13
Evidence Act 1977 (Qld), s 15, s 21A
Juvenile Justice Act 1992 (Qld), s 62

Amoe v Director of Public Prosecutions (1991) 66 ALJR 29, cited
Jones (1997) 191 CLR 439, cited
Longman v The Queen (1989) 168 CLR 79, cited
M v The Queen (1994) 181 CLR 487, cited
Phillips v The Queen (1985) 159 CLR 45, followed
R v G [1997] 1 Qd R 584, cited
R v Jenkins (1945) 31 Cr App R 1, cited

COUNSEL:

Mr A Rafter for the appellant/applicant
Mr C Heaton for the respondent

SOLICITORS:

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

1. McPHERSON JA:  I have read and agree with the reasons of Chesterman J for allowing this appeal against conviction.  The appeal should be allowed.  The convictions and verdicts are set aside.  Verdict and judgment of acquittal are entered on counts 2, 3 and 4 of the indictment.

1. THOMAS JA: This appeal raises an important question concerning the proper exercise of a trial judge's discretion to permit cross-examination of an accused person on his criminal convictions. A discretion to do so is conferred by s 15 of the Evidence Act 1977. The nature of the discretion has been the subject of authoritative judicial discussion.[1]

   [1]Phillips v The Queen (1985) 159 CLR 45.

1. Whilst any reconsideration of the relevant principles is inappropriate, it is timely to examine…