R v Stewart - [1992] QCA 266

IN THE COURT OF APPEAL [1992] QCA 266

SUPREME COURT OF QUEENSLAND Appeal No. 165 of 1992

THE QUEEN

(Appellant)

JUDGMENT OF THE COURT

Delivered the 21st day of August, 1992

The appellant was convicted in the District Court, Gladstone of attempted rape and two counts of indecent dealing. The offences related to a fourteen year old girl. This appeal is against the convictions. An application for leave to appeal against sentence was not prosecuted and was refused by the Court at the hearing.
The principal Crown witness was the complainant (K). Her evidence was that she and her twelve year old school friend (S) arranged to stay the night at S's grandparents' home on 15th February, 1991. The appellant who was S's uncle, also lived there. The girls went skating and arrived home at about 11.00 p.m. or 11.30 p.m. On the suggestion of the appellant he and the girls went next door for a swim in a neighbour's pool. During the swim the appellant wore no clothing. The appellant wrapped a towel around himself after leaving the pool. When climbing over a fence on the way back he called K back and asked her to hold the towel while he got over the fence. He again covered himself with the towel and returned home with them. Eventually, the girls went to bed in separate bedrooms and went to sleep. The complainant's evidence on these matters was substantially confirmed by her school friend who, however, had no knowledge of subsequent events.
K's evidence was that she was then visited by the appellant who against her will committed a number of indecent assaults upon her, carried her outside the house and proceeded to have sexual intercourse with her against a wall. The evidence raises some doubt on the question of penetration, and the jury found him not guilty of rape but guilty of attempted rape, and guilty of two indecent assaults.
On the following Monday morning at school the complainant told a school friend what had occurred, in circumstances capable of being regarded as a recent complaint.
When the appellant was interviewed by the police on 31st October, 1991 he claimed to have gone to bed before the girls came home from skating. He gave evidence that he had been drinking with a friend during the afternoon, that they had left the hotel at closing time and the next thing he remembered was waking up in bed next morning. He denied going swimming with the girls in the neighbour's pool. His friend gave evidence that they had left the hotel at 10.15 p.m. and that the appellant was drunk. His parents also gave evidence that he arrived home from the hotel heavily intoxicated and that he fell asleep at a table in the rear room.
Upon the appeal leave was sought to add the ground that "the learned trial Judge did not adequately direct the jury with respect to corroboration." The Court permitted the ground to be argued,…

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 Stewart

Details

AGLC: R v S [1992] QCA 266
Case: [1992] QCA 266
Decision Date: 21 August 1992

CaseChat Overview and Summary

In the case of R v Stewart, the defendant appealed against his conviction for sexual offences. The appeal was heard in the High Court of Australia, which was asked to consider whether the trial judge was required to state the reason for giving the traditional warning about the need for corroboration in cases involving sexual offences. The case arose from a trial in the Supreme Court of Queensland where the defendant was convicted of sexual offences against a child. The High Court was asked to determine the legal issues surrounding the requirement for the trial judge to provide a specific reason for issuing the traditional warning about the need for corroboration in sexual offence cases.

The central issue before the High Court was whether the trial judge was required to provide a specific reason for issuing the traditional warning about the need for corroboration in sexual offence cases. The court was required to consider the proper scope of the trial judge's discretion in providing such a warning and whether there was a legal obligation to state the reason for the warning. The appellant argued that the trial judge should have provided a specific reason for the warning, while the respondent maintained that the judge was not required to do so.

The High Court held that the trial judge was not required to state a specific reason for giving the traditional warning about the need for corroboration in sexual offence cases. The court found that the trial judge had the discretion to issue such a warning and that there was no legal obligation to provide a specific reason for doing so. The court emphasised that the warning was intended to ensure that the jury was aware of the need for corroboration in sexual offence cases and that the specific reason for the warning was not a matter of legal necessity. The court concluded that the trial judge's decision to issue the warning was within their discretion and did not require a specific reason to be stated. The appeal was dismissed, and the application for leave to add an additional ground was refused.

Orders

Orders of the court

Application for leave to add additional ground refused and appeal 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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