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R v Tichowitsch

R v Tichowitsch

Case [2006] QCA 569 22 December 2006

Jurisdiction

Appeal

Misdirection and Non-Direction

Admissibility of Evidence

Criminal Law

Type to search within this case.

SUPREME COURT OF QUEENSLAND

CITATION:

R v Tichowitsch [2006] QCA 569

PARTIES:

R
v
TICHOWITSCH, Michael
(appellant)

FILE NO/S:

CA No 280 of 2006
DC No 310 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

22 December 2006

DELIVERED AT:

Brisbane

HEARING DATE:

1 December 2006

JUDGES:

Williams and Keane JJA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Appeal against conviction dismissed

CATCHWORDS:

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JURIES - GENERALLY - appellant convicted by jury of one count of indecently dealing with a child under 12 years of age and in his care - learned trial judge provided jury with transcript of the evidence at trial - whether appellant deprived of fair trial as a result of jury being provided with transcript

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JURIES - DISCHARGE AND EXCUSING FROM ATTENDANCE - after pre-recorded evidence was played to jury, juror passed note to learned trial judge - note said that one juror's stepdaughter had alleged that she was raped several years prior but stepdaughter had not pursued charges - juror's note said that juror could still give defendant "benefit of the doubt" - appellant's counsel at trial sought discharge of jury - whether learned trial judge erred in refusing to discharge jury in these circumstances

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - appellant argued the case called for a warning of the kind referred to in Robinson v The Queen - nature of warning in Robinson v The Queen and warning in Longman v The Queen in light of Tully v The Queen - circumstances in which these warnings are required - whether such a warning was required in this case

Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A
Evidence Act 1977 (Qld), s 93A
Jury Act 1977 (NSW), s 55C
Criminal Code 1899 (Qld), s 210, s 632

Abbott v Western Australia (2005) 152 A Crim R 186, cited
Bromley v The Queen (1986) 161 CLR 315, cited
Carr v The Queen (1988) 165 CLR 314, cited
Driscoll v The Queen (1977) 137 CLR 517, considered
Longman v The Queen (1989) 168 CLR 79, considered
R v Czajkowski (2002) 137 A Crim R 111, cited
R v Haines [2002] 3 NZLR 13, cited
R v Johnston (1998) 45 NSWLR 362, cited
R v Lowe (1997) 98 A Crim R 300, cited
R v McLean [2001] 3 NZLR 794, cited
R v Munro [2005] VSCA 260, cited
R v Myles [1997] 1 Qd R 199, cited
R v NZ (2005) 63 NSWLR 628; [2005] NSWCCA 278, cited
R v Rawlings [1995] 1 All ER 580, considered
R v Taousanis (1999) 146 A Crim R 303,…

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 Tichowitsch

Details

AGLC: R v Tichowitsch [2006] QCA 569
Case: [2006] QCA 569
Decision Date: 22 December 2006

CaseChat Overview and Summary

In the case of R v Tichowitsch, the appellant was convicted by a jury of one count of indecently dealing with a child under 12 years of age and in his care. The trial judge had provided the jury with a transcript of the evidence at trial, which the appellant argued deprived him of a fair trial. Additionally, during the trial, one juror passed a note to the trial judge indicating that the juror could still give the appellant the benefit of the doubt, despite the juror's stepdaughter having alleged she was raped several years prior but had not pursued charges. The appellant's counsel sought the discharge of the jury, but the trial judge refused to do so. The appellant also argued that the trial judge should have given a warning to the jury about the reliability of the complainant's evidence, as required in cases such as Robinson v The Queen.

The court was required to determine whether the trial judge's decision to provide the jury with a transcript of the evidence at trial deprived the appellant of a fair trial. The court also needed to decide whether the trial judge erred in not discharging the jury after receiving the note from one of the jurors. Furthermore, the court had to consider whether the trial judge was required to give a warning to the jury about the reliability of the complainant's evidence, in light of the decision in Tully v The Queen.

The court held that the trial judge's decision to provide the jury with a transcript of the evidence at trial did not deprive the appellant of a fair trial. The court found that the trial judge did not err in refusing to discharge the jury after receiving the note from one of the jurors, as there was no evidence of bias or impropriety. Regarding the warning about the reliability of the complainant's evidence, the court held that no such warning was required in this case. The court concluded that none of the grounds of appeal had succeeded and dismissed the appeal against conviction.

The final orders of the court were to dismiss the appeal against the conviction.

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

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Tichowitsch [2006] QCA 569

Most Recent Citation

R v Lake [2007] QCA 209

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R v CCZ
[2023] QCA 237

…idence R v Cotic [2003] QCA 435, cited R v Tichowitsch [2007] 2 Qd R 462; [2006] QCA 569, cited COUNSEL: A J Glynn KC, with J K Kennedy, for the appellant S L Dennis for the respondent SOLICITORS: Schoenmaker Legal for the appellant Director of Public Prosecutions (Queensland) for the respondent…
R v Mko
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…Tichowitsch [2007] 2 Qd R 462; [2006] QCA 569, cited COUNSEL: M J Hynes for the appellant C W Wallis for the respondent SOLICITORS: Guest Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent…
YBG v The State of Western Australia
[2019] WASCA 126 Para 3

…2] Bulejcik v The Queen [1996] HCA 50; (1996) 185 CLR 375, 386; R v Taousanis [1999] NSWSC 107; (1999) 146 A Crim R 303 [9] ‑ [14]; R v Tichowitsch [2006] QCA 569; [2007] 2 Qd R 462 [7] ‑ [8], [52].…
R v MCT
[2018] QCA 189 Para 1

…of a permissible sentencing discretion with numerical precision.[205] [203]The authorities he referred to were R v T [1998] QCA 206; R v Tichowitsch [2006] QCA 569; R v M [2003] QCA 556; R v BG [2000] QCA 42; R v ELS ; ex parte Attorney-General [2004] QCA 111; R v Barker , unreported, Judge Rafter SC, 19 March 2…
R v MCN
[2018] QCA 101 Para 3

…tion of the factors relevant to the evaluation of the evidence. That was not sufficient.”[48] [46][2007] 2 Qd R 462 at 482-483, [60]; [2006] QCA 569. [47] Longman v The Queen at 91. [48] Longman v The Queen at 91.…
R v Taylor
[2017] QCA 169

…7 CLR 517; [1977] HCA 43, cited R v Rawlings; R v Broadbent [1995] 1 All ER 580, cited R v Tichowitsch [2007] 2 Qd R 462; [2006] QCA 569, cited COUNSEL: S C Holt QC for the appellant V A Loury QC for the respondent SOLICITORS: Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for…
R v SCS
[2017] QCA 78

…v SBL [2009] QCA 130, considered R v Tichowitsch [2007] 2 Qd R 462; [2006] QCA 569, considered Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, cited COUNSEL: J J Allen QC for the appellant G P Cash QC for the respondent SOLICITORS: Legal Aid Queensland for the appellant Director of Public Prosecutions (Qu…
R v Davari
[2016] QCA 222 Para 2

…h Keane JA made emphatic reference in R v Tichowitsch .[65] [63]Appeal Transcript 1-25 ll25-27. [64][2006] HCA 56; (2006) 230 CLR 234 at [178]. [65][2006] QCA 569; [2007] 2 Qd R 462 at [73] (Williams JA and Philippides J agreeing).…
R v Reynolds
[2015] QCA 111

…, cited R v Spina [2012] QCA 179, considered R v Tichowitsch [2007] 2 Qd R 462; [2006] QCA 569, considered Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35, considered Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, considered SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, considered Tully v The Q…
R v Smith
[2014] QCA 277

…ed R v Tichowitsch [2007] 2 Qd R 462; [2006] QCA 569, cited R v Yuill (1994) 34 NSWLR 179; (1994) 77 A Crim R 314, applied Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259; [2008] HCA 5, followed COUNSEL: A Boe with B Dighton for the appellant B Campbell for the respondent SOLICI…
R v MBX
[2013] QCA 214

…R 640; (1998) 101 A Crim R 569; [1998] QCA 157, considered R v Tichowitsch [2007] 2 Qd R 462; [2006] QCA 569, considered R v Tilley (2009) 105 SASR 306; (2009) 197 A Crim R 262; [2009] SASC 277, cited R v TN (2005) 153 A Crim R 129; [2005] QCA 160, considered R v Willersdorf [2001] QCA 183, considered R v WRC (20…
R v Nguyen
[2013] QCA 133

…668E(1) M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited R v Tichowitsch [2007] 2 Qd R 462; [2006] QCA 569, considered Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, considered Tully v The Queen (2006) 230 CLR 234; [2006] HCA 56, considered COUNSEL: C Heaton SC for the appellant B J Power for the r…
R v BCL
[2013] QCA 108

…d R v Michael (2008) 181 A Crim R 490; [2008] QCA 33, considered R v Tichowitsch [2007] 2 Qd R 462; [2006] QCA 569, cited R v Williams [2010] 1 Qd R 276; [2008] QCA 411, considered COUNSEL: K Prskalo for the appellant M R Byrne SC for the respondent SOLICITORS: Legal Aid Queensland for the appellant Director of P…
R v Lacey & Lacey
[2011] QCA 386

…[2011] HCA 12, cited Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, cited RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3, cited Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28, applied COUNSEL: A Boe, with P Morreau, for the appellants/applicants M R Byrne SC for the respondent SOLICITORS: Nyst La…
R v Marshall
[2010] QCA 43

…rim R 445, cited R v S [1999] 2 Qd R 89; [1998] QCA 071, cited R v Tichowitsch [2007] 2 Qd R 462; [2006] QCA 569, applied Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, distinguished TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, applied Tully v The Queen (2006) 230 CLR 234; [2006] HCA 56, cited COU…
R v Falzon
[2009] QCA 393

…R 64; [2002] QCA 33, cited R v Jacobs [1998] 1 Qd R 96; [1997] QCA 114, cited R v Tichowitsch [2007] 2 Qd R 462; [2006] QCA 569, cited COUNSEL: J Cremin for the appellant/applicant M J Copley SC for the respondent SOLICITORS: Mackenzie Mitchell Solicitors for the appellant/applicant Director of Public Prosecutio…
R v Ridsdale
[2009] QCA 188

…, cited R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, considered R v Tichowitsch [2007] 2 Qd R 462; [2006] QCA 569, distinguished Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, considered Tully v The Queen (2006) 230 CLR 234; [2006] HCA 56, cited COUNSEL: The appellant appeared on his own behalf…
R v Raphael
[2009] QCA 145

…A 227, cited R v L [1997] QCA 436, cited R v Libke [2006] QCA 242, cited R v Tichowitsch [2007] 2 Qd R 462; [2006] QCA 569, cited COUNSEL: K Prskalo for the appellant M B Lehane for the respondent SOLICITORS: Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent…
Cooper v The State of Western Australia
[2009] WASCA 37 Para 3

…The appellant referred to R v Tichowitsch [2006] QCA 569 where Williams JA said at [11] ‑ [12] (Keane JA and Philippides J agreeing): But it does not follow that transcripts of evidence should be given to juries during their deliberation as a matter of course. The decision whether or not to do so involves an act…
R v Hayes
[2008] QCA 371 Para 1

…f matters personal to the uncorroborated witness upon whom the Crown relies.[19] [16](1999) 197 CLR 162 at [20] – [21]. [17](2006) 230 CLR 234. [18][2006] QCA 569. [19]…
R v Miller
[2007] QCA 373 Para 1

…the learned trial judge provided the jury with a copy of the transcript of evidence for use during their deliberations. This Court in R v Tichowitsch [2006] QCA 569 recognised that in certain circumstances, and subject to conditions, a jury could be provided with some or all of the transcript of proceedings. But…
R v. Le
[2007] QCA 259 Para 1

…provision of a transcript of oral evidence given in the trial raises the spectrum of issues comprehensively discussed by Williams JA in that case. [7][2006] QCA 569 at [4].…
R v Schneiders
[2007] QCA 210 Para 1

…he third ground of appeal. [3] Tully v The Queen [2006] HCA 56 at [50] – [54], [87] – [92], [156] – [162], [172] – [186]. [4] R v Tichowitsch [2006] QCA 569 at [75] – [81].…
R v Lake
[2007] QCA 209

…rim R 216, considered R v Tichowitsch [2006] QCA 569; CA No 280 of 2006, 22 December 2006, considered R v Watts (1992) 1 Qd R 214, applied R v Weaver (1931) 45 CLR 321, distinguished R v Zurek [2006] QCA 543; CA No 24 of 2006, 15 December 2006, distinguished COUNSEL: J D Henry SC, with J Trevino, for the appellan…
Vella v The State of Western Australia
[2007] WASCA 59

…Queen (1979) 141 CLR 409 Mansell v The Queen (1857) 8 El & Bl 54; 120 ER 20 R v Greening [1957] NZLR 906 R v Healey (1965) 109 SJ 700 R v Tichowitsch [2006] QCA 569 Ras Behari Lal v King-Emperor (1933) 102 LJ (PC) 144 Smith v The Queen (1970) 121 CLR 572 Vella v The State of Western Australia [2006] WASCA 177 Web…

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Cases cited in this decision · 31 of 31 shown

Tully v The Queen
[2006] HCA 56 Para 1

…at such a warning is not required merely because the Crown case depends on the testimony of a child complainant whose evidence is uncorroborated. [11][2006] HCA 56; (2006) 81 ALJR 391.…
R v Munro
[2005] VSCA 260 Para 1

…th what has been written by Williams JA. [4] R v Taousanis (1999) 146 A Crim R 303 at 305 – 306 [8] – [14]; R v NZ (2005) 63 NSWLR 628; R v Munro [2005] VSCA 260 at [56]; R v Haines [2002] 3 NZLR 13.…
R v NZ
[2005] NSWCCA 278

…Crim R 300, cited R v McLean [2001] 3 NZLR 794, cited R v Munro [2005] VSCA 260, cited R v Myles [1997] 1 Qd R 199, cited R v NZ (2005) 63 NSWLR 628; [2005] NSWCCA 278, cited R v Rawlings [1995] 1 All ER 580, considered R v Taousanis (1999) 146 A Crim R 303, considered R v TN [2005] QCA 160; (2005) 153 A Crim R 129,…
R v TN
[2005] QCA 160 Para 1

…took those circumstances to be identified in the passage from the judgment in Robinson v The Queen which I have set out at paragraph [64] above. [12][2005] QCA 160; (2005) 153 A Crim R 129 at 139 – 141 [55] – [58].…
R v DAJ
[2005] QCA 40 Para 1

…om during their deliberations (reference in that regard can be made to R v H [1999] 2 QdR 283, R v C [2000] 2 QdR 54, R v S [2002] QCA 57 and R v DAJ [2005] QCA 40). The general trend has been to say that the jury ought not have such a statement in the jury room; but if a transcript of all evidence was provided…
R v RWB
[2003] SASC 420

…Carruthers AJ agreed; R v BWT (2002) 54 NSWLR 241 at 263 [75] and 272-275 [95] per Sully J; R v GTN (2003) 6 VR 150 at 163 [55] per Eames JA; R v RWB (2003) 87 SASR 256 at 262-270 [33]-[55] per Besanko J with whom Bleby J agreed, 272-275 [65]-[80] per Sulan J; R v BFB (2003) 87 SASR 278 at 282-284 [34]-[41] per Doyle…
R v BFB
[2003] SASC 411

…163 [55] per Eames JA; R v RWB (2003) 87 SASR 256 at 262-270 [33]-[55] per Besanko J with whom Bleby J agreed, 272-275 [65]-[80] per Sulan J; R v BFB (2003) 87 SASR 278 at 282-284 [34]-[41] per Doyle CJ with whom Perry and Mullighan JJ agreed; R v MM (2004) 145 A Crim R 148 at 169-171 [111]-[122] per Howie J; R v DRG…
MFA v The Queen
[2002] HCA 53

…Queen (1989) 168 CLR 79; B v The Queen (1992) 175 CLR 599; S v The Queen (1997) 191 CLR 275; Doggett v The Queen (2001) 208 CLR 343; MFA v The Queen (2002) 213 CLR 606.) The appellant again relied upon Robinson , contending that the Court of Appeal failed convincingly to distinguish it, and that it was not an except…
R v BWT
[2002] NSWCCA 60

…ions has not always proved easy, particularly in respect of clarifying how great a delay might give rise to an imperative to give a warning ( R v BWT (2002) 54 NSWLR 241 at 272-273 [95] per Sully J; R v GTN (2003) 6 VR 150 at 154 [12] per Callaway JA, 172-174 [90]-[101] per Eames JA). As stated in Doggett this is not…
R v S
[2002] QCA 57 Para 1

…the jury into the jury room during their deliberations (reference in that regard can be made to R v H [1999] 2 QdR 283, R v C [2000] 2 QdR 54, R v S [2002] QCA 57 and R v DAJ [2005] QCA 40). The general trend has been to say that the jury ought not have such a statement in the jury room; but if a transcript of…
Doggett v the Queen
[2001] HCA 46

…en (1988) 165 CLR 314; Longman v The Queen (1989) 168 CLR 79; B v The Queen (1992) 175 CLR 599; S v The Queen (1997) 191 CLR 275; Doggett v The Queen (2001) 208 CLR 343; MFA v The Queen (2002) 213 CLR 606.) The appellant again relied upon Robinson , contending that the Court of Appeal failed convincingly to distingui…
R v Glennon (No 2)
[2001] VSCA 17

…erienced judge, but which a jury may fail to appreciate, needs to be identified because a judge must warn of the relevant danger ( R v Glennon (No 2) (2001) 7 VR 631 at 671 per Winneke P and Ormiston JA) before explaining to the jury how the particular danger is to be avoided. Without that circumstance, a warning…
Re Ruddock; Ex parte Reyes
[2000] HCA 66

…161 CLR 315 at 319, 323-325 and Carr v The Queen (1988) 165 CLR 314 at 330; followed in Robinson v The Queen (1999) 197 CLR 162; Crampton v The Queen (2000) 206 CLR 161; Doggett v The Queen (2001) 208 CLR 343). The appellant contended that the trial judge should have warned the jury in accordance with Longman that it…
RPS v The Queen
[2000] HCA 3 Para 1

…Code , there was no occasion for him to do so in order to ensure that the appellant received a fair trial according to law.[25] [24] RPS v The Queen (2000) 199 CLR 620 at [41] – [42]. [25] Tully v The Queen [2006] HCA 56 at [178]; (2006) 81 ALJR 391 at 425; Bromley v The Queen (1986) 161 CLR 315 at 322; Carr v The Q…
Robinson v The Queen
[1999] HCA 42 Para 1

…nse as a long delay. As it happens, there is no evidence of any actual detriment such as missing witnesses or documents". [1]See Robinson v The Queen (1999) 197 CLR 162. [2]See Longman v The Queen (1989) 168 CLR 79.…
R v Taousanis
[1999] NSWSC 107 Para 1

…In R v Taousanis (1999) 146 ACrim R 303 Sperling J summarised the position in New South Wales prior to 1987. It is worth quoting the passage because it also accurately states what has generally been the practice in Queensland:…
R v Johnston
[1998] QCA 469 Para 1

…an approach, and pointed out that it may itself constitute an "encouragement of a miscarriage of justice".[21] [21](1989) 168 CLR 79 at 93. See also R v Johnston (1998) 45 NSWLR 362 at 367 – 368.…
BRS v The Queen
[1997] HCA 47

…Queen (1986) 161 CLR 315; Carr v The Queen (1988) 165 CLR 314; Longman v The Queen (1989) 168 CLR 79; B v The Queen (1992) 175 CLR 599; S v The Queen (1997) 191 CLR 275; Doggett v The Queen (2001) 208 CLR 343; MFA v The Queen (2002) 213 CLR 606.) The appellant again relied upon Robinson , contending that the Court of…
Crofts v The Queen
[1996] HCA 22

…lass of persons, such as children or young persons giving evidence in a sexual matter, are inherently unreliable. As explained in Crofts v The Queen ((1996) 186 CLR 427) concerning similar legislation in Victoria ( Crimes Act 1958 (Vic), s 61), this Court in Longman dealt with similar legislation in Western Australia…
Webb v the Queen
[1994] HCA 30 Para 1

…ber of the public that the juror, or the jury, has not discharged or will not discharge his or her or their task impartially.[3] [3] Webb v The Queen (1994) 181 CLR 41 at 53, 88; R v Myles [1997] 1 Qd R 199; R v Czajkowski (2002) 137 A Crim R 111 at 115 – 116 [19] – [20]; Abbott v Western Australia (2005) 152 A Crim…
B v The Queen
[1992] HCA 68

…CLR 534 at 564-569; Bromley v The Queen (1986) 161 CLR 315; Carr v The Queen (1988) 165 CLR 314; Longman v The Queen (1989) 168 CLR 79; B v The Queen (1992) 175 CLR 599; S v The Queen (1997) 191 CLR 275; Doggett v The Queen (2001) 208 CLR 343; MFA v The Queen (2002) 213 CLR 606.) The appellant again relied upon Robin…
Longman v The Queen
[1989] HCA 60

…"In support of the submission that the Court of Appeal erred in not holding that the trial judge should have given a specific warning with respect to the possible unreliability of the complainant's evidence, the appellant argued that s 9 (Section 9 provides: 'Presumption as to competency (1) Every p…
Carr v The Queen
[1988] HCA 47

…"In support of the submission that the Court of Appeal erred in not holding that the trial judge should have given a specific warning with respect to the possible unreliability of the complainant's evidence, the appellant argued that s 9 (Section 9 provides: 'Presumption as to competency (1) Every p…
Bromley v The Queen
[1986] HCA 49 Para 1

…4] RPS v The Queen (2000) 199 CLR 620 at [41] – [42]. [25] Tully v The Queen [2006] HCA 56 at [178]; (2006) 81 ALJR 391 at 425; Bromley v The Queen (1986) 161 CLR 315 at 322; Carr v The Queen (1988) 165 CLR 314 at 324 – 325; RPS v The Queen (2000) 199 CLR 620 at [41] – [42].…
Driscoll v The Queen
[1977] HCA 43 Para 1

…That last observation echoes the statement of Gibbs J in Driscoll v The Queen (1977) 137 CLR 517 at 542 where he said with respect to an unsigned record of interview:…
Kelleher v The Queen
[1974] HCA 48

…in variance with what has been held by this Court on numerous occasions (The appellant cited the following cases on that point: Kelleher v The Queen (1974) 131 CLR 534 at 564-569; Bromley v The Queen (1986) 161 CLR 315; Carr v The Queen (1988) 165 CLR 314; Longman v The Queen (1989) 168 CLR 79; B v The Queen (1992)…
Crampton v The Queen
[2000] HCA 6023

…y v The Queen (1986) 161 CLR 315 at 319, 323-325 and Carr v The Queen (1988) 165 CLR 314 at 330; followed in Robinson v The Queen (1999) 197 CLR 162; Crampton v The Queen (2000) 206 CLR 161; Doggett v The Queen (2001) 208 CLR 343). The appellant contended that the trial judge should have warned the jury in accordance with Lon…
[1987] AC 128
[1987] AC 128

…by reason of a long delay 'of more than 20 years' in prosecution ((1989) 168 CLR 79 at 91). Harking back to Lord Hailsham's statement in R v Spencer ([1987] AC 128 at 135, see also Lord Ackner at 141) that a danger may not be 'obvious to a lay mind', it was stated that such a factor 'may not have been apparent t…
[1999] 1 SCR 330
[1999] 1 SCR 330

…168 CLR 79 at 91-94) and B v The Queen ((1992) 175 CLR 599 at 616). They included what are now rejected as 'stereotypical assumptions' ( R v Ewanchuk [1999] 1 SCR 330 at 336). Once it is understood that s 632(2) is not aimed at, and does not abrogate, the general requirement to give a warning whenever it is necessa…
[2001] 3 NZLR 794
[2001] 3 NZLR 794 Para 1

…anscript is not a common one in this jurisdiction, however it is a developing trend in some jurisdictions, particularly New Zealand (see R v McLean [2001] 3 NZLR 794 at 802; R v Haines [2002] 3 NZLR 13). Issues of balance may arise where the discretion is exercised to provide the transcript ( R v Lowe (1997) 98 A Cr…
[2002] 3 NZLR 13
[2002] 3 NZLR 13 Para 1

…JA. [4] R v Taousanis (1999) 146 A Crim R 303 at 305 – 306 [8] – [14]; R v NZ (2005) 63 NSWLR 628; R v Munro [2005] VSCA 260 at [56]; R v Haines [2002] 3 NZLR 13.…

Legislation cited in this decision · 7

Criminal Law (Sexual Offences) Act 1978 (Qld)
4A, 4A(4)) 3 mentions (from Para 1)
Evidence Act 1977 (Qld)
93A 2 mentions (from Para 1)
Jury Act 1977 (NSW)
55C 2 mentions (from Para 1)
Crimes Act 1958 (Vic)
61) 1 mention
Criminal Law Amendment Act 1988 (WA)
39) 1 mention
Evidence Act 1906 (WA)
36BE 1 mention
Evidence Act 1997 (Qld)
1 mention (from Para 1)

CITATION:	R v Tichowitsch [2006] QCA 569
PARTIES:	R v TICHOWITSCH, Michael (appellant)
FILE NO/S:	CA No 280 of 2006 DC No 310 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	22 December 2006
DELIVERED AT:	Brisbane
HEARING DATE:	1 December 2006
JUDGES:	Williams and Keane JJA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Appeal against conviction dismissed
CATCHWORDS:	CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JURIES - GENERALLY - appellant convicted by jury of one count of indecently dealing with a child under 12 years of age and in his care - learned trial judge provided jury with transcript of the evidence at trial - whether appellant deprived of fair trial as a result of jury being provided with transcript CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JURIES - DISCHARGE AND EXCUSING FROM ATTENDANCE - after pre-recorded evidence was played to jury, juror passed note to learned trial judge - note said that one juror's stepdaughter had alleged that she was raped several years prior but stepdaughter had not pursued charges - juror's note said that juror could still give defendant "benefit of the doubt" - appellant's counsel at trial sought discharge of jury - whether learned trial judge erred in refusing to discharge jury in these circumstances CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - appellant argued the case called for a warning of the kind referred to in Robinson v The Queen - nature of warning in Robinson v The Queen and warning in Longman v The Queen in light of Tully v The Queen - circumstances in which these warnings are required - whether such a warning was required in this case Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A Evidence Act 1977 (Qld), s 93A Jury Act 1977 (NSW), s 55C Criminal Code 1899 (Qld), s 210, s 632 Abbott v Western Australia (2005) 152 A Crim R 186, cited Bromley v The Queen (1986) 161 CLR 315, cited Carr v The Queen (1988) 165 CLR 314, cited Driscoll v The Queen (1977) 137 CLR 517, considered Longman v The Queen (1989) 168 CLR 79, considered R v Czajkowski (2002) 137 A Crim R 111, cited R v Haines [2002] 3 NZLR 13, cited R v Johnston (1998) 45 NSWLR 362, cited R v Lowe (1997) 98 A Crim R 300, cited R v McLean [2001] 3 NZLR 794, cited R v Munro [2005] VSCA 260, cited R v Myles [1997] 1 Qd R 199, cited R v NZ (2005) 63 NSWLR 628; [2005] NSWCCA 278, cited R v Rawlings [1995] 1 All ER 580, considered R v Taousanis (1999) 146 A Crim R 303,…