R v W - [1997] QCA 415

IN THE COURT OF APPEAL	[1997] QCA 415
SUPREME COURT OF QUEENSLAND

C.A. No. 349 of 1997.

Brisbane

Before Pincus

J.A.

de Jersey J.
Muir J.

[R v. W]

T H E Q U E E N

v.
W

Appellant

___________________________________________________________________

Judgment delivered 21 November 1997

Joint reasons for judgment of Pincus J.A. and Muir J., separate reasons of de Jersey J.,
concurring as to the orders made.

_____________________________________________________________________

APPEAL AGAINST CONVICTION ALLOWED. CONVICTIONS QUASHED. NEW
TRIAL ORDERED.

_____________________________________________________________________

CATCHWORDS: CRIMINAL LAW - appeal against convictions - 3 charges of

unlawful and indecent dealing and 1 charge of having with intent to commit an indictable offence administered stupefying drugs to the complainant - complainant’s evidence showed that there were substantially more than 3 instances of unlawful and indecent dealing - when evidence of uncharged offences may be admitted - to what use may evidence of uncharged offences be put - whether absence of directions as to use of evidence of uncharged offences is fatal to the convictions - whether when the evidence proves a number of similar acts each constituting an offence, the prosecution must associate a particular identified incident with each charge and prove its occurrence - whether if convictions on counts 3 and 4 had to be set aside, convictions on counts 1 and 2 could stand - whether evidence of uncharged offences can be considered for sentencing purposes.
S v. The Queen (1989) 168 C.L.R. 266
Allen [1937] St.R.Qd. 32
B (1992) 175 C.L.R. 599
Witham [1962] Qd.R. 49
Beserick (1993) 30 N.S.W.L.R. 510
Pfennig (1995) 182 C.L.R. 461
BRS (High Court, unreported 25 September 1997)
R v. D [1996] 1 Qd.R. 363

Counsel:	Mr P Alcorn for the appellant. Mr P Ridgway for the respondent.
Solicitors:	Legal Aid Queensland for the appellant. Director of Public Prosecutions (Queensland)
Hearing date:	3 November 1997.

JOINT REASONS FOR JUDGMENT - PINCUS J.A. AND MUIR J.

Judgment delivered 21 November 1997

The appellant was convicted in the District Court of 4 charges relating to sexual interference with his step-daughter. There were 3 charges of unlawful and indecent dealing and 1 of having with intent to commit an indictable offence administered stupefying drugs to the complainant.

The evidence that the appellant had committed offences of the kind charged was strong and uncontradicted. However, there were difficulties about the way the case was conducted, relating first to the fact that no directions were given about the use of evidence which was admitted of the commission of offences against the complainant, by the appellant, other than those charged and, secondly, to the lack of definition of the occasions on which the offences charged were committed.

The complainant’s evidence was principally in the form of two video recordings of a police interview of the complainant; some oral evidence was also adduced, in which to some extent the complainant elaborated upon what she had said in the police interview. Counts 1, 3 and 4, the allegations of unlawful and indecent dealing, alleged, not precise…

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 [1997] QCA 415
Case: [1997] QCA 415
Decision Date: 21/11/1997

CaseChat Overview and Summary

In the case of R v W, the appellant was convicted in the District Court of four charges relating to sexual interference with his step-daughter. The charges included three instances of unlawful and indecent dealing and one charge of administering stupefying drugs with intent to commit an indictable offence. The court was required to determine the admissibility and proper use of evidence of uncharged offences and whether the prosecution adequately identified the specific incidents related to the charges. The central issues were whether the trial judge's failure to provide directions regarding the use of uncharged offences led to a miscarriage of justice and whether the prosecution had sufficiently identified the incidents forming the basis of the charged offences. The Court of Appeal held that the absence of any direction on the proper use of uncharged offences was fatal to the convictions, as it left the jury uncertain about how to properly consider this evidence. Furthermore, the court found that the prosecution had not adequately identified the specific incidents related to the charged offences, leading to ambiguity and confusion. Consequently, the appeal against conviction was allowed, the convictions were quashed, and a new trial was ordered.

Orders