R v T

Case [1999] QCA 376 10 September 1999

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IN THE COURT OF APPEAL [1999] QCA 376
SUPREME COURT OF QUEENSLAND

CA No 179 of 1999

Brisbane
[R v T]

THE QUEEN
v
T
Appellant

McMurdo P
Thomas JA
Chesterman J

Judgment delivered 10 September 1999
Separate reasons for judgment of each member of the Court; each concurring as to the order made
APPEAL ALLOWED. CONVICTIONS SET ASIDE. NO NEW TRIAL ORDERED.
CATCHWORDS: CRIMINAL LAW - PARTICULAR OFFENCES - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - indecent dealing and maintaining an unlawful sexual relationship

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - complainant’s version uncorroborated - complainant mistaken about dates of alleged offences - complainant admitted dishonesty - whether upon whole of evidence jury could be satisfied beyond reasonable doubt of appellant’s guilt
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - PROSECUTION - OTHER MATTERS - prosecutor’s focus on appellant’s inability to provide motive for complainant’s false accusations - implication that appellant bears onus of proving false motive - whether jury misled as a result - whether appellant deprived of legitimate chance of acquittal - whether sufficient direction given to overcome effect of illegitimate inquiry
Criminal Code s 668E
M v Queen (1994) 181 CLR 487
Palmer v The Queen (1998) 193 CLR 1
R v W (CA No 476 of 1997, 12 May 1998)

Counsel:Mr P Feeney for the appellant
Mr M Copley for the respondent

Solicitors:Hewlett & Company for the appellant
Director of Public Prosecutions (Queensland) for the respondent

Hearing Date: 25 August 1999

MCMURDO P: I agree with Chesterman J for the reasons given by him that the verdict is not unsafe and unsatisfactory.
As to the prosecution’s focus on the appellant’s inability to provide a motive for the complainant’s making and persisting in false accusations, I agree with what has been said both by Thomas JA and Chesterman J. I agree that that error may have deprived the appellant of a significant possibility of acquittal and the convictions should subsequently be set aside.
Although this would ordinarily result in a retrial, this case is rightly described as a finely balanced one; there have already been two trials, one leading to a disagreement and one to a successful appeal; the appellant has served a substantial term of imprisonment in respect of these offences and is elderly and in poor health; the history of this case must also have taken its toll on the complainant and her family and friends. I am finally persuaded that the interests of justice would not be served by ordering a retrial. I agree with the orders proposed by Thomas JA and Chesterman J.

THOMAS JA: This is an appeal against convictions upon five counts of indecent dealing and one count of maintaining an unlawful sexual relationship.

Only three witnesses gave evidence in the trial - two for the Crown and one for the defence. The Crown case consisted of evidence from the…

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.

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Details

AGLC: R v T [1999] QCA 376
Case: [1999] QCA 376
Decision Date: 10/09/1999

CaseChat Overview and Summary

This appeal was against convictions on five counts of indecent dealing and one count of maintaining an unlawful sexual relationship. The trial had been a difficult one. The appellant had already served a term of imprisonment and had been through two trials, the first of which had resulted in a disagreement. The Court of Appeal allowed the appeal, set aside the convictions and directed that there be no new trial. The complainant’s version was uncorroborated, no complaint had been made for about four years and she was shown to be of dubious honesty and her account of the offences was inaccurate in a material particular. The trial miscarried because of the prosecutor’s emphasis on the appellant’s inability to provide any motive for the complainant to make false allegations against him. The directions given were not sufficient to overcome the error and the verdict was set aside. In the circumstances of this case the error was sufficient to require the verdict to be set aside. It was not necessary to consider whether the guilty verdict was unsafe and unsatisfactory. The appellant had already had two contested trials, the first resulting in a disagreement and the second in a miscarriage. He had already served more than four months imprisonment in respect of these offences. He was elderly and in poor health. Moreover, on any view the capacity of the Crown case to sustain a safe conviction was very dubious. In these circumstances it would not be in the interests of justice to put this appellant upon his trial for a third time.

Orders