R v Svensen - [2014] QCA 85

SUPREME COURT OF QUEENSLAND

CITATION:

R v Svensen [2014] QCA 85

PARTIES:

R
v
SVENSEN, Cheynne Troy
(appellant)

FILE NO/S:

CA No 278 of 2013
DC No 153 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Rockhampton

DELIVERED ON:

24 April 2014

DELIVERED AT:

Brisbane

HEARING DATE:

1 April 2014

JUDGES:

Fraser and Morrison JJA and Applegarth J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

APPEAL AGAINST CONVICTION DISMISSED.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the appellant was convicted after a trial of one count of maintaining a sexual relationship with a child under 16 years – where the defence introduced evidence of the complainant’s conduct to cast doubt on the complainant’s credibility – where the prosecutor in his address to the jury identified reasons why the jury would not doubt her credibility – where in summing up the learned primary judge summarised the rival contentions of the defence and prosecution – where there was no objection by defence counsel at trial to the way the learned primary judge summarised the parties’ contentions – where the appellant contends that the reference in the learned primary judge’s summing up to the evidence of “what [the complainant] did” involved an error of law that the learned primary judge ought to have corrected – whether the jury would have understood that the evidence of the complainant’s conduct could only be used to determine the complainant’s credibility and was not evidence of the appellant’s conduct – whether the learned primary judge should have instructed the jury as to how the evidence of the complainant’s conduct could be used

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE LIES – APPLICATION OF PROVISO TO PARTICULAR CASES – where s 668E(1A) of the Criminal Code provides that “the Court may, notwithstanding that it is of the opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred” – where in addition to evidence of the complainant’s conduct, there was the complainant’s oral evidence, evidence of an admission by the appellant, and DNA evidence – where the DNA evidence corroborated the complainant’s oral evidence – whether a substantial miscarriage of justice has occurred

Criminal Code 1899 (Qld), s 229B(1), s 668E(1A)

Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; [2012] HCA 14, cited
Darkan v The Queen (2006) 227 CLR 373; [2006] HCA 34, cited
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, cited

COUNSEL:

P J Callaghan SC for the appellant
D L Meredith for the respondent

SOLICITORS:

Legal Aid Queensland for…

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 Svensen

Details

AGLC: Content removed
Case: [2014] QCA 85
Decision Date: 24 April 2014

CaseChat Overview and Summary

The appellant, Svensen, was convicted of maintaining a sexual relationship with a child under 16 years, and the case was brought before the court for appeal. The appeal centred around the contention that there was a miscarriage of justice due to the primary judge’s alleged error in the summing up, specifically in relation to the way the evidence of the complainant’s conduct was presented to the jury. The appellant argued that the primary judge should have directed the jury on how this evidence could be used, particularly in relation to the complainant’s credibility, rather than implying it could be used as evidence of the appellant’s conduct.

The court considered whether the primary judge's summing up amounted to a non-direction or misdirection of the jury, and whether this led to a miscarriage of justice. The primary judge had summarised the evidence presented by both the defence and the prosecution, but did not specifically instruct the jury on the limited use of the complainant's conduct evidence. The appellant argued that this omission could have misled the jury into considering the complainant's conduct as direct evidence of the appellant’s guilt. However, the court determined that the primary judge’s summing up, in the context of the overall evidence presented, did not result in a substantial miscarriage of justice.

Upon reviewing the totality of the evidence, including the complainant’s oral testimony, the appellant’s admission, and corroborative DNA evidence, the court concluded that the error, if any, did not result in a substantial miscarriage of justice. The appellant's contention that the jury might have misunderstood the purpose of the complainant’s conduct evidence was considered in light of the strong corroborative evidence against the appellant. Accordingly, the appeal was dismissed as no substantial miscarriage of justice was found to have occurred.

APPEAL AGAINST CONVICTION DISMISSED.

Orders

Orders of the court

APPEAL AGAINST CONVICTION DISMISSED.

Background

Background to the litigation

Full text does not contain this section.

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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CITATION:	R v Svensen [2014] QCA 85
PARTIES:	R v SVENSEN, Cheynne Troy (appellant)
FILE NO/S:	CA No 278 of 2013 DC No 153 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Rockhampton
DELIVERED ON:	24 April 2014
DELIVERED AT:	Brisbane
HEARING DATE:	1 April 2014
JUDGES:	Fraser and Morrison JJA and Applegarth J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	APPEAL AGAINST CONVICTION DISMISSED.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the appellant was convicted after a trial of one count of maintaining a sexual relationship with a child under 16 years – where the defence introduced evidence of the complainant’s conduct to cast doubt on the complainant’s credibility – where the prosecutor in his address to the jury identified reasons why the jury would not doubt her credibility – where in summing up the learned primary judge summarised the rival contentions of the defence and prosecution – where there was no objection by defence counsel at trial to the way the learned primary judge summarised the parties’ contentions – where the appellant contends that the reference in the learned primary judge’s summing up to the evidence of “what [the complainant] did” involved an error of law that the learned primary judge ought to have corrected – whether the jury would have understood that the evidence of the complainant’s conduct could only be used to determine the complainant’s credibility and was not evidence of the appellant’s conduct – whether the learned primary judge should have instructed the jury as to how the evidence of the complainant’s conduct could be used CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE LIES – APPLICATION OF PROVISO TO PARTICULAR CASES – where s 668E(1A) of the Criminal Code provides that “the Court may, notwithstanding that it is of the opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred” – where in addition to evidence of the complainant’s conduct, there was the complainant’s oral evidence, evidence of an admission by the appellant, and DNA evidence – where the DNA evidence corroborated the complainant’s oral evidence – whether a substantial miscarriage of justice has occurred Criminal Code 1899 (Qld), s 229B(1), s 668E(1A) Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; [2012] HCA 14, cited Darkan v The Queen (2006) 227 CLR 373; [2006] HCA 34, cited Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, cited
COUNSEL:	P J Callaghan SC for the appellant D L Meredith for the respondent
SOLICITORS:	Legal Aid Queensland for…