R v W

Case [1998] QCA 90 12 May 1998

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IN THE COURT OF APPEAL	[1998] QCA 090
SUPREME COURT OF QUEENSLAND

C.A. No. 476 of 1997

Brisbane [R v. W]

THE QUEEN

v.
W

(Applicant) Appellant
Pincus JA Thomas J Dowsett J

Judgment delivered 12 May 1998

Separate reasons for judgment of each member of the Court; Pincus JA and Thomas J concurring, Dowsett J dissenting on appeal against conviction.

APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO

APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS:	Criminal Law - Series of sexual offences over 8 years - Alleged incompetence of counsel - Refusal to discharge jury when counsel replaced during trial - R v Green [1997] 1 Qd R 584 followed - Fresh complaint evidence - Complaint “fresh” in relation to some and “late” in relation to others - Whether special directions necessary - Evidence of continuity of sexual relationship between charged acts - Basis of admissibility of such evidence - Whether directions on use of such evidence (e.g. not to use it as showing propensity) necessary in all cases - Sentence.
Counsel:	Mr A. Rafter for the applicant/appellant Mr C. Chowdhury for the respondent
Solicitors:	Legal Aid Queensland for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent
Hearing Date:	24 March 1998

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 12 May 1998

I have had the advantage of reading the reasons of Thomas J. and those of Dowsett J.; the nature of the evidence in the case is explained in the reasons of Thomas J. and I propose to deal with the issues using the categories adopted by Thomas J.

Refusal to discharge jury

In Green [1997] 1 Qd.R. 584 the treatment of allegations of incompetence of defence counsel is discussed in a way which I have, with respect, found helpful. Here, the argument was that the defence counsel who began the trial (and who was ultimately dismissed) did not put the defence case properly to the witnesses for the prosecution. In Green reference is made to Birks (1990) 19 N.S.W.L.R. 677, which gives some support to the view that incompetence must ordinarily be "flagrant" to make the trial a miscarriage of justice. Birks is also referred to in the decision of the Victorian Court of Appeal in Miletic [1997] 1 V.L.R. 593 at 598. After emphasising the difficulty of obtaining a new trial on the ground of allegedly ill-advised decisions taken by an accused’s counsel, the Victorian Court remarked:

"An appellate court will nevertheless intervene if it is satisfied that something occurred at the trial which has led to a miscarriage of justice. It may be that the material before the court will demonstrate that there has been such a defect of judgment or neglect of duty on the part of trial counsel that the court, on appeal, is left with the view that justice has miscarried. As Brooking J. said, in his dissenting judgment in R v. Sarek, at 987, there may be circumstances which make it appropriate for the court to ‘interfere to protect…

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 [1998] QCA 90
Case: [1998] QCA 90
Decision Date: 12/05/1998

CaseChat Overview and Summary

The case of R v W involved a defendant facing a series of sexual offences that spanned over eight years. The primary dispute centred on the alleged incompetence of the defendant's counsel during the trial and the refusal to discharge the jury when the counsel was replaced mid-trial. The case was heard in the Supreme Court of Queensland. The central legal issues revolved around whether the trial judge was correct in refusing to discharge the jury upon the replacement of counsel and whether special directions were necessary regarding the fresh complaint evidence, which was deemed fresh in relation to some offences and late in relation to others. Additionally, the court considered the admissibility and the basis of evidence showing a continuity of sexual relationship between the charged acts, and whether special directions were necessary on the use of such evidence.

The court examined the principle established in R v Green, where it was held that the trial judge's refusal to discharge the jury was appropriate when the replacement of counsel did not prejudice the defendant's case. The court found that the trial judge had acted within the bounds of the established legal precedents. The court also considered the nature of the fresh complaint evidence, noting that while some complaints were fresh, others were late. The court concluded that special directions were not necessary unless there was a real risk of prejudice to the defendant. Regarding the evidence of continuity of sexual relationship, the court held that such evidence could be admissible to show matters such as opportunity, absence of accident, and absence of misconception, but it was essential to give appropriate directions to the jury to avoid them using such evidence improperly. Finally, the court assessed the sentence and took into account the nature and gravity of the offences.

In conclusion, the court upheld the trial judge's decisions on the refusal to discharge the jury and the handling of the fresh complaint evidence. The court determined that the trial judge did not err in the admission and direction of evidence regarding the continuity of the sexual relationship. The final orders of the court included the confirmation of the defendant's conviction and the sentence imposed, which reflected the severity and nature of the offences committed.

Orders