R v Taiters - [2001] QCA 324

SUPREME COURT OF QUEENSLAND

CITATION: R v Taiters [2001] QCA 324

PARTIES: R
v
TAITERS, Jason Lyall
(applicant/appellant)

FILE NO/S: CA No 380 of 2000
DC No 505 of 2000

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction and Sentence

ORIGINATING COURT:
District Court at Townsville

DELIVERED ON: 10 August 2001

DELIVERED AT: Brisbane

HEARING DATE: 26 July 2001

JUDGES: McMurdo P, Davies JA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

ORDER:
1.Appeal against conviction dismissed.

2.(a)Application for leave to appeal against sentence granted.

(b)Appeal allowed.

(c)Set aside the sentences of 10 years imprisonment and substitute sentences of eight years imprisonment for rape, four years imprisonment for indecent assault with a circumstance of aggravation and three years imprisonment for each of the other offences of indecent assault.

(d)Declare that 419 days between 19 October 1999 and 11 December 2000 be time served under the sentences.

CATCHWORDS:
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - CONSIDERATION OF SUMMING UP AS A WHOLE - whether summing up lacked judicial balance and fairness - trial judge in summing up spent more time on complainant's evidence than on appellant's - evidence central to the alleged offences came mostly from the complainant - whether summing up should have included references to defence contention that complainant had a motive to fabricate a case against appellant

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - EXPRESSION OF JUDGE'S OWN OPINION - GENERALLY - where opinion was not expressed in strong terms - where earlier direction that jury was not bound by what trial judge said on the facts

CRIMINAL LAW - JURISDICTION PRACTICE AND PROCEDURE - WITNESSES - CROSS-EXAMINATION - GENERALLY - whether prosecutor's cross-examination of the appellant was inflammatory and prejudicial

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - GENERAL PRINCIPLES - whether evidence of two witnesses improperly excluded

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN GRANTED - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - where sentence 10 years imprisonment imposed - where sentencing judge erred in failing to consider the effect on the sentence of Part 9A of the Penalties and Sentences Act 1992

Penalties and Sentences Act 1992 (Qld), Part 9A

B v The Queen (1992) 175 CLR 599, applied

Palmer v The Queen (1998) 193 CLR 1, distinguished
R v Lock [2001] QCA 84; CA No 151 of 2000, 13 March 2001, applied
R v Mogg (2000) 112 ACrimR 417, applied
RPS v The Queen

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 Taiters

Details

AGLC: R v Taiters [2001] QCA 324
Case: [2001] QCA 324
Decision Date: 10 August 2001

CaseChat Overview and Summary

In the matter of R v Taiters, the appellant was convicted of multiple sexual offences and sentenced to a total of ten years imprisonment. The appeal was against both the conviction and the sentence. The court was required to consider whether the summing up by the trial judge was fair and balanced, whether there was any expression of the judge’s opinion that could have prejudiced the jury, whether the prosecutor’s cross-examination of the appellant was prejudicial, and if any evidence was improperly excluded or included. Additionally, the court needed to assess whether the sentencing judge adequately considered the relevant statutory provisions when imposing the sentence.

The court examined the summing up and found that while the trial judge spent more time discussing the complainant's evidence, this did not necessarily render the summing up unfair or unbalanced. The judge had previously directed the jury that they were not bound by the judge’s opinions on the facts, mitigating any potential prejudice. The court also determined that the prosecutor’s cross-examination did not reach the level of being inflammatory or prejudicial. Regarding the exclusion of evidence, the court found no error in the trial judge's decisions. However, concerning the sentence, the court found that the sentencing judge had failed to consider the effect of Part 9A of the Penalties and Sentences Act 1992, which necessitated a review of the sentence.

The appeal against conviction was dismissed. However, the application for leave to appeal against the sentence was granted, and the appeal was allowed. The sentences were set aside, and new sentences were imposed: eight years imprisonment for rape, four years for indecent assault with a circumstance of aggravation, and three years for each of the other offences of indecent assault. The court also declared that 419 days already served by the appellant should count towards the new sentences.

Orders

Orders of the court

1.Appeal against conviction dismissed.

2.(a)Application for leave to appeal against sentence granted.

(b)Appeal allowed.

(c)Set aside the sentences of 10 years imprisonment and substitute sentences of eight years imprisonment for rape, four years imprisonment for indecent assault with a circumstance of aggravation and three years imprisonment for each of the other offences of indecent assault.

(d)Declare that 419 days between 19 October 1999 and 11 December 2000 be time served under the sentences.

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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CITATION:	R v Taiters [2001] QCA 324
PARTIES:	R v TAITERS, Jason Lyall (applicant/appellant)
FILE NO/S:	CA No 380 of 2000 DC No 505 of 2000
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction and Sentence
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	10 August 2001
DELIVERED AT:	Brisbane
HEARING DATE:	26 July 2001
JUDGES:	McMurdo P, Davies JA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the orders made.
ORDER:	1.Appeal against conviction dismissed. 2.(a)Application for leave to appeal against sentence granted. (b)Appeal allowed. (c)Set aside the sentences of 10 years imprisonment and substitute sentences of eight years imprisonment for rape, four years imprisonment for indecent assault with a circumstance of aggravation and three years imprisonment for each of the other offences of indecent assault. (d)Declare that 419 days between 19 October 1999 and 11 December 2000 be time served under the sentences.
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - CONSIDERATION OF SUMMING UP AS A WHOLE - whether summing up lacked judicial balance and fairness - trial judge in summing up spent more time on complainant's evidence than on appellant's - evidence central to the alleged offences came mostly from the complainant - whether summing up should have included references to defence contention that complainant had a motive to fabricate a case against appellant CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - EXPRESSION OF JUDGE'S OWN OPINION - GENERALLY - where opinion was not expressed in strong terms - where earlier direction that jury was not bound by what trial judge said on the facts CRIMINAL LAW - JURISDICTION PRACTICE AND PROCEDURE - WITNESSES - CROSS-EXAMINATION - GENERALLY - whether prosecutor's cross-examination of the appellant was inflammatory and prejudicial CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - GENERAL PRINCIPLES - whether evidence of two witnesses improperly excluded CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN GRANTED - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - where sentence 10 years imprisonment imposed - where sentencing judge erred in failing to consider the effect on the sentence of Part 9A of the Penalties and Sentences Act 1992 Penalties and Sentences Act 1992 (Qld), Part 9A B v The Queen (1992) 175 CLR 599, applied Palmer v The Queen (1998) 193 CLR 1, distinguished R v Lock [2001] QCA 84; CA No 151 of 2000, 13 March 2001, applied R v Mogg (2000) 112 ACrimR 417, applied RPS v The Queen