R v Van Der Zyden

Case [2012] QCA 89

SUPREME COURT OF QUEENSLAND

CITATION:

R v Van Der Zyden [2012] QCA 89

PARTIES:

R
v
VAN DER ZYDEN, Johannes Zweerus
(appellant)

R
v
VAN DER ZYDEN, Johannes Zweerus
(respondent)
EX PARTE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
(appellant)

FILE NO/S:

CA No 249 of 2011
CA No 251 of 2011
SC No 923 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction
Sentence Appeal by Cth DPP

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

13 April 2012

DELIVERED AT:

Brisbane

HEARING DATE:

7 February 2012

JUDGES:

Chief Justice and Muir JA and Margaret Wilson AJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal against conviction dismissed

2. Appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NONDIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of committing acts of indecency and intercourse whilst outside of Australia on complainants that were under 16 in contravention of the Crimes Act 1914 (Cth) – where the prosecutor invited the jury to consider the complainants’ absence of motive to support a finding that the offending took place – where the primary judge gave a direction with respect to motive – where no redirection was sought by defence – where there was delay in the prosecution of the matter – where the primary judge directed the jury with respect to delay – where the primary judge did not give a direction with respect to identification of the appellant – where defence did not seek such direction at trial – where the primary judge gave a direction with respect to preliminary complaint – where no redirection was sought – where the appellant submitted that the trial judge failed to adequately warn with respect to propensity reasoning – whether the primary judge properly directed the jury with respect to motive – whether the primary judge gave an adequate Longman direction – whether failure to direct constituted a miscarriage of justice – whether the primary judge should have given an identification direction – whether the trial judge’s preliminary complaint direction was erroneous – whether the trial judge failed to adequately warn against propensity reasoning – whether the conviction was unsafe and unsatisfactory

CRIMINAL LAW – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY INADEQUATE – where the appellant was convicted of committing acts of indecency and intercourse whilst outside of Australia on complainants that were under 16 in contravention of the Crimes Act 1914 (Cth) – where the appellant received a head sentence of three years and six months imprisonment with a fixed non-parole period of 21 months for each of the intercourse offences – where the appellant received lesser concurrent terms of imprisonment for the acts of indecency – whether the sentencing judge erred in making all sentences concurrent – whether the sentencing judge gave insufficient weight to aggravating factors and excessive weight to mitigating factors…

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Details
AGLC
R v Van Der Zyden [2012] QCA 89
Case
[2012] QCA 89
Decision Date

CaseChat Overview and Summary

The appellant was convicted of committing acts of indecency and intercourse on complainants under the age of 16 while outside of Australia, in contravention of the Crimes Act 1914 (Cth). He appealed both his conviction and his sentence. The primary judge had directed the jury regarding motive, delay in prosecution, and preliminary complaints, but had not directed them regarding the identification of the appellant. The appellant argued that the trial judge failed to adequately warn against propensity reasoning and that the primary judge's directions were erroneous, resulting in a miscarriage of justice. Additionally, the appellant argued that the sentences imposed were manifestly inadequate.

The court considered whether the primary judge properly directed the jury with respect to motive and whether an adequate Longman direction was given. It was noted that no redirection was sought by the defence regarding the primary judge's directions, and the court found no miscarriage of justice occurred as a result of the primary judge's directions. The court also found that the primary judge was not required to give an identification direction, as none was sought by the defence at trial. The court further held that the primary judge's direction with respect to the preliminary complaint was not erroneous and that the trial judge adequately warned against propensity reasoning. The appeal against conviction was dismissed.

Regarding the sentence, the court found that the sentencing judge did not err in making all sentences concurrent and did not give insufficient weight to aggravating factors or excessive weight to mitigating factors. The court held that the sentences imposed were not manifestly inadequate. Therefore, the appeal against sentence was also dismissed.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Appeal against sentence 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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