R v W

Case [2000] QCA 321 8 August 2000

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SUPREME COURT OF QUEENSLAND

CITATION: R v W [2000] QCA 321

PARTIES: R
v
W
(applicant/appellant)

FILE NO/S: CA No 141 of 2000
DC No 160 of 2000

DIVISION: Court of Appeal

PROCEEDING: Appeal against conviction and sentence

ORIGINATING COURT:
District Court at Maroochydore

DELIVERED ON: 8 August 2000

DELIVERED AT: Brisbane

HEARING DATE: 3 August 2000

JUDGES:
Davies and Pincus JJA, Chesterman J

Judgment of the Court

ORDER:
1. Appeal against conviction dismissed.

2. Application for leave to appeal against sentence granted; appeal allowed. Set aside sentences imposed below and replace by a sentence of 6 months imprisonment on each of the three counts, suspended after 2 months, with an operational period of 2 years.

CATCHWORDS:
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – VERDICT – INCONSISTENT, AMBIGUOUS AND MEANINGLESS VERDICTS – GENERALLY – appellant convicted on counts 1 to 3 and acquitted on counts 4 to 6 – complainant's evidence of dates on which counts 4 to 6 occurred unreliable – whether this showed her evidence relating to earlier counts to be unreliable

CRIMINAL LAW – EVIDENCE – SIMILAR FACTS – RELEVANCE – SEXUAL OFFENCES – whether evidence of uncharged offences can be used as background material to provide setting in which jury can consider charges

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 – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES

Fraser [1998] NSWSC 286, mentioned
Gipp [1998] HCA 21; (1998) 194 CLR 106, discussed
Kailis [1999] WASCA 29, mentioned
Loguancio [2000] VSCA 33, mentioned

COUNSEL: A J Glynn SC for the applicant/appellant
M J Byrne QC for the respondent

SOLICITORS: Alan Taylor & Associates for the applicant/appellant
Director of Public Prosecutions (Queensland) for the respondent

THE COURT: The appellant was charged with having on five occasions unlawfully and indecently dealt with a female child and having on a sixth occasion attempted to do so. He was convicted, after a trial, on the first three counts mentioned in the indictment and acquitted on the last three. Mr Glynn SC, for the appellant, does not press the ground taken in the notice of appeal, that the verdicts on counts 1, 2 and 3 are inconsistent with the verdicts on counts 4 and 5 (count 6 being the attempt), but says that against the background of the evidence the acquittals on counts 4, 5 and 6 show that the verdicts reached in relation to counts 1, 2 and 3 were unsafe.

As we understand the contention, it is that the evidence relating to counts 4, 5 and 6 advanced on behalf of the appellant threw such a cloud of doubt over the accuracy of the complainant's version of events that the verdicts on counts 1, 2 and 3 could not safely be let stand. Counts 1, 2 and 3, on each of which the verdict was…

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 W

Details

AGLC: R v W [2000] QCA 321
Case: [2000] QCA 321
Decision Date: 8 August 2000

CaseChat Overview and Summary

The appellant was convicted on three counts of sexual assault and acquitted on three other counts. The complainant's evidence regarding the dates of the offences was deemed unreliable, leading to the acquittal on the latter counts. The appellant appealed against both the conviction and the sentence. The primary issues were whether the unreliable evidence regarding the dates of counts 4 to 6 rendered the complainant's evidence about counts 1 to 3 unreliable, and whether evidence of uncharged offences could be used as background material for the jury. Additionally, the appeal questioned the severity of the sentence imposed.

The court examined the reliability of the complainant's evidence and found no reason to doubt the credibility of her testimony regarding counts 1 to 3, despite the unreliability of her evidence about counts 4 to 6. It was determined that evidence of uncharged offences could be used to provide context for the jury, provided it was relevant and not prejudicial. The court also considered the sentence to be excessive and granted the application to reduce it.

The appeal against the conviction was dismissed, as the evidence was deemed reliable for the counts in question. However, the application for leave to appeal against the sentence was granted, and the sentences were set aside. In their place, the court imposed a sentence of six months imprisonment on each count, suspended after two months, with an operational period of two years.

The final orders of the court were to dismiss the appeal against conviction but to grant the application for leave to appeal against the sentence. The sentences imposed were set aside and replaced with a sentence of six months imprisonment on each count, suspended after two months, with an operational period of two years.

Orders

Orders of the court

1. Appeal against conviction dismissed.

2. Application for leave to appeal against sentence granted; appeal allowed. Set aside sentences imposed below and replace by a sentence of 6 months imprisonment on each of the three counts, suspended after 2 months, with an operational period of 2 years.

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

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Citations

AGLC Citation

R v W [2000] QCA 321

Most Recent Citation

R v A [2000] QCA 520

Cases citing this decision · 9 of 9 shown

R v Hcu
[2025] QCA 59 Para 22

…The appellant particularly relied on the cases of R v B ,[17] R v W [18] and R v T [19] to support the sentence imposed. [17][2003] QCA 105. [18][2000] QCA 321. [19][1996] QCA 45.…
R v BCY
[2015] QCA 200 Para 26

…ce should be suspended immediately, primarily because of the delay, and his rehabilitation. [23][2014] QCA 285, at [18]-[20]. [24][2003] QCA 105. [25][2000] QCA 321. [26][2009] QCA 22.…
R v. KT; ex parte A-G (Qld)
[2007] QCA 340

…of 1998, 3 December 1998, considered R v Moffat [2003] QCA 95; CA No 439 of 2002, 11 March 2003, considered R v W [2000] QCA 321; CA No 141 of 2000, 8 August 2000, distinguished COUNSEL: M J Copley for the appellant P Callaghan SC for the respondent SOLICITORS: Director of Public Prosecutions (Queensland) for the…
R v NH
[2006] QCA 476 Para 1

…lationship of trust between father and daughter was, of course, a very significant factor. [2][2005] QCA 36. [3][2004] QCA 329. [4][2003] QCA 105. [5][2000] QCA 321.…
R v Ban
[2004] QCA 416

…e – When granted – Particular offences – Offences against the person – Sexual offences R v Harkin (1989) 38 A Crim R 296, cited R v W [2000] QCA 321; CA No 141 of 2000, 8 August 2000, referred to COUNSEL: K M McGinness for the applicant T A Fuller for the respondent SOLICITORS: Legal Aid (Queensland) for the appl…
R v N; ex parte
[2003] QCA 391 Para 1

…The next relevant decision of this court in respect of a then seven year maximum penalty is the decision in R v W [2000] QCA 321. In that matter the court heard an appeal by W after he was convicted, following a trial, on three counts of having indecently dealt with a then six to eight year old child. The offence…
R v B
[2003] QCA 105 Para 1

…In my opinion the authorities referred to of R v W [2000] QCA 321; CA No 141 of 2000, 8 August 2000, R v Larson; ex parte Attorney-General [1998] QCA 468; CA No 373 of 1998, 3 December 1998, R v Sivell [1999] QCA 506; CA No 341 of 1999, 3 December 1999 and R v Schirmer [1995] QCA 242; CA No 84 of 1995, 26 April 1…
R v S
[2002] QCA 300

…23rd of June 1998, Lacey, Court of Appeal No 262 of 1998 delivered 9th of October 1998, Gerhardt ex parte The Attorney-General [1999] QCA 477, and W [2000] QCA 321, I consider that the sentence imposed was manifestly excessive.…
R v A
[2000] QCA 520

…60556 of 1998, 7 March 2000, considered R v Vonarx [1999] 3 VR 618, reported R v W [2000] QCA 321; CA No 141 of 2000, 8 August 2000, considered R v Young [1998] 1 VR 402, considered Robinson v The Queen (1999) 197 CLR 162, distinguished Robinson v R (1999) 73 ALJR 1314, considered Suresh v The Queen (1998) 72 AL…

View all 9 citing cases →

Cases cited in this decision · 5 of 5 shown

R v Loguancio
[2000] VSCA 33 Para 1

…should be noted, however, that in other jurisdictions the High Court's reasons in Gipp have been treated with some reserve. Callaway JA in Loguancio [2000] VSCA 33, suggested that Gipp is "hard to apply correctly" and that counsel "would be well advised to steer clear of it". In Fraser [1998] NSWSC 286, the New…
Gipp v The Queen
[1998] HCATrans 212 Para 1

…A direction in this form has High Court authority against it: Gipp [1998] HCA 21; (1998) 194 CLR 106 at [176]. It should be noted, however, that in other jurisdictions the High Court's reasons in Gipp have been treated with some reserve. Callaway JA in Loguancio [2000] VSCA 33, suggested that Gipp is "hard to apply c…
Gipp v the Queen
[1998] HCA 21 Para 1

…A direction in this form has High Court authority against it: Gipp [1998] HCA 21; (1998) 194 CLR 106 at [176]. It should be noted, however, that in other jurisdictions the High Court's reasons in Gipp have been treated with some reserve. Callaway JA in Loguancio [2000] VSCA 33, suggested that Gipp is "hard to ap…
[1998] NSWSC 286
[1998] NSWSC 286 Para 1

…n Loguancio [2000] VSCA 33, suggested that Gipp is "hard to apply correctly" and that counsel "would be well advised to steer clear of it". In Fraser [1998] NSWSC 286, the New South Wales Court of Criminal Appeal said that the decision has no clear ratio; see also Ipp J in Kailis [1999] WASCA 29 at [202] et seq.…
[1999] WASCA 29
[1999] WASCA 29 Para 1

…of it". In Fraser [1998] NSWSC 286, the New South Wales Court of Criminal Appeal said that the decision has no clear ratio; see also Ipp J in Kailis [1999] WASCA 29 at [202] et seq.…

Legislation cited in this decision · 0

No legislation cited in this case.

CITATION:	R v W [2000] QCA 321
PARTIES:	R v W (applicant/appellant)
FILE NO/S:	CA No 141 of 2000 DC No 160 of 2000
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against conviction and sentence
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	8 August 2000
DELIVERED AT:	Brisbane
HEARING DATE:	3 August 2000
JUDGES:	Davies and Pincus JJA, Chesterman J Judgment of the Court
ORDER:	1. Appeal against conviction dismissed. 2. Application for leave to appeal against sentence granted; appeal allowed. Set aside sentences imposed below and replace by a sentence of 6 months imprisonment on each of the three counts, suspended after 2 months, with an operational period of 2 years.
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – VERDICT – INCONSISTENT, AMBIGUOUS AND MEANINGLESS VERDICTS – GENERALLY – appellant convicted on counts 1 to 3 and acquitted on counts 4 to 6 – complainant's evidence of dates on which counts 4 to 6 occurred unreliable – whether this showed her evidence relating to earlier counts to be unreliable CRIMINAL LAW – EVIDENCE – SIMILAR FACTS – RELEVANCE – SEXUAL OFFENCES – whether evidence of uncharged offences can be used as background material to provide setting in which jury can consider charges 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 – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES Fraser [1998] NSWSC 286, mentioned Gipp [1998] HCA 21; (1998) 194 CLR 106, discussed Kailis [1999] WASCA 29, mentioned Loguancio [2000] VSCA 33, mentioned
COUNSEL:	A J Glynn SC for the applicant/appellant M J Byrne QC for the respondent
SOLICITORS:	Alan Taylor & Associates for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent