R v TZ - [2011] QCA 305

SUPREME COURT OF QUEENSLAND

CITATION:

R v TZ [2011] QCA 305

PARTIES:

R
v
TZ
(appellant)

FILE NO/S:

CA No 225 of 2011
DC No 1404 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

28 October 2011

DELIVERED AT:

Brisbane

HEARING DATE:

18 October 2011

JUDGES:

Chief Justice, Fraser and White JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where appellant charged with three counts of indecent treatment of a child under the age of 12 and one count of indecent treatment of a child under the age of 16 – where jury unable to agree on verdict on count 1, appellant convicted by majority verdict on counts 2 and 3, unanimously acquitted of count 4 – where appellant appealed on ground that trial judge’s discretion miscarried by failing to direct jury as to legal effect of evidence about appellant’s prior good character – where no direction or redirection sought by counsel at trial – whether a miscarriage of justice occurred

Attwood v The Queen (1960) 102 CLR 353; [1960] HCA 15, cited
Donaldson v The State of Western Australia (2007) 176 A Crim R 488; [2007] WASCA 216, cited
Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32, considered
R v Hinschen[2008] QCA 145, considered
Simic v The Queen (1980) 144 CLR 319; [1980] HCA 25, considered

COUNSEL:

M J Copley SC for the appellant
V A Loury for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

CHIEF JUSTICE: I have had the advantage of reading the reasons for judgment of White JA. I agree that for the reasons expressed by her Honour, the appeal should be dismissed.

FRASER JA: I have had the advantage of reading the reasons for judgment of White JA. I agree with those reasons and with the order proposed by her Honour.

WHITE JA: The appellant was charged with three counts of indecent treatment of a child under the age of 12 and one count of indecent treatment of a child under the age of 16 years. On 4 August 2011, on the ninth day of his trial in the District Court at Brisbane, the jury indicated that they were unable to agree on a verdict in respect of count 1 and were discharged from returning a verdict on that count; by majority verdicts they found the appellant guilty of counts 2 and 3; and unanimously acquitted the appellant of count 4. The appellant was sentenced to three months’ imprisonment to be followed by probation for 18 months.

At the commencement of the appeal leave was given to file an amended Notice of Appeal which…

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 TZ

Details

AGLC: R v TZ [2011] QCA 305
Case: [2011] QCA 305
Decision Date: 28 October 2011

CaseChat Overview and Summary

In the case of R v TZ, the appellant was convicted by a majority verdict on two counts of indecent treatment of a child under the age of 12 and was unanimously acquitted on a further count of the same offence as well as a count of indecent treatment of a child under the age of 16. The jury was unable to reach a verdict on the first count. The appellant appealed against his conviction, arguing that the trial judge miscarried in his discretion by failing to direct the jury as to the legal effect of evidence about the appellant's prior good character. The trial judge did not direct the jury on this issue, and neither the prosecution nor the defence sought a direction or redirection on this matter.

The legal issue before the court was whether the trial judge's failure to direct the jury on the legal effect of evidence of the appellant's prior good character constituted a miscarriage of justice. The court examined the circumstances under which the trial judge is required to direct the jury on the relevance and effect of evidence of good character, and whether the failure to do so in this case was such that it resulted in a miscarriage of justice. The court noted that while there is a general duty on the trial judge to direct the jury as to the relevance and effect of evidence of good character, there are circumstances where such a direction may not be necessary.

The court concluded that the trial judge's failure to direct the jury on the legal effect of the evidence of the appellant's good character did not result in a miscarriage of justice. The court found that there was no suggestion that the evidence of good character was relevant to the appellant's propensity to commit the offence, and that the failure to direct the jury on this matter did not affect the fairness of the trial. The court also noted that neither counsel sought a direction or redirection on this issue, and that the appellant had not demonstrated how the failure to direct the jury on this matter had resulted in a miscarriage of justice.

The appeal was dismissed, and the appellant's convictions were upheld. The court found that the trial judge's failure to direct the jury on the legal effect of evidence of the appellant's good character did not amount to a miscarriage of justice, and that the convictions were safe and satisfactory.

Orders

Orders of the court

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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CITATION:	R v TZ [2011] QCA 305
PARTIES:	R v TZ (appellant)
FILE NO/S:	CA No 225 of 2011 DC No 1404 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	28 October 2011
DELIVERED AT:	Brisbane
HEARING DATE:	18 October 2011
JUDGES:	Chief Justice, Fraser and White JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where appellant charged with three counts of indecent treatment of a child under the age of 12 and one count of indecent treatment of a child under the age of 16 – where jury unable to agree on verdict on count 1, appellant convicted by majority verdict on counts 2 and 3, unanimously acquitted of count 4 – where appellant appealed on ground that trial judge’s discretion miscarried by failing to direct jury as to legal effect of evidence about appellant’s prior good character – where no direction or redirection sought by counsel at trial – whether a miscarriage of justice occurred Attwood v The Queen (1960) 102 CLR 353; [1960] HCA 15, cited Donaldson v The State of Western Australia (2007) 176 A Crim R 488; [2007] WASCA 216, cited Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32, considered R v Hinschen[2008] QCA 145, considered Simic v The Queen (1980) 144 CLR 319; [1980] HCA 25, considered
COUNSEL:	M J Copley SC for the appellant V A Loury for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent