R v Wal - [2011] QCA 264

SUPREME COURT OF QUEENSLAND

CITATION:

R v WAL [2011] QCA 264

PARTIES:

R
v
WAL
(appellant)

FILE NO/S:

CA No 79 of 2011
DC No 2 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Ipswich

DELIVERED EX TEMPORE ON:

30 September 2011

DELIVERED AT:

Brisbane

HEARING DATE:

30 September 2011

JUDGES:

White JA, Margaret Wilson AJA and Fryberg J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.Leave granted to amend Notice of Appeal.
2.Leave granted to file amended Notice of Appeal.
3.Allow the appeal.
4.Set aside the conviction.

5.Order a retrial.

CATCHWORDS:

APPEAL AND NEW TRIAL – NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS – IN GENERAL – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES INVOLVING MISCARRIAGE – MISDIRECTION – where the appellant was convicted after a trial of maintaining a sexual relationship with a child – where the appellant contends that the primary judge failed to give directions to the jury explaining the limitations of the use of preliminary complaint evidence – where the respondent concurs that a new trial is necessary – whether misdirections or failures to direct the jury in the judge’s summing up amounted to a miscarriage of justice

Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A
Evidence Act 1977 (Qld), s 93A(1)

Jones v R (1997) 143 ALR 52; [1997] HCA 12, cited
R v Lillyman [1896] 2 QB 167, cited
R v Mason[2006] QCA 125, cited
R v RH [2005] 1 Qd R 180; [2004] QCA 225, cited

COUNSEL:

M Copley SC for the appellant
R G Martin SC for the respondent

SOLICITORS:

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

WHITE JA: The appellant was convicted after a trial of maintaining an unlawful relationship of a sexual nature with his granddaughter between 1 January 2008 and 27 October 2009. She was born in February 2001 and was aged between nearly seven and eight years when the offending occurred. The appellant gave evidence at the trial denying the offending. In his Notice of Appeal the appellant contends that the verdict is “unsafe and unsatisfactory having regard to the evidence”. He has sought and was given leave to amend the Notice of Appeal by adding the following ground:

“[T]he learned judge erred and/or a miscarriage of justice occurred in that the jury was not directed about the use that could or could not be made of the preliminary complaint evidence.”

The appellant abandoned his original ground of appeal.

The complainant’s mother gave evidence that she and her husband had discussed with their children that they should not permit anyone to touch them inappropriately. In her evidence-in-chief the mother said that on 27 October 2009 she asked the complainant if anyone had touched her inappropriately. The complainant responded “no” but in a manner which made the mother think that she was hiding something so she…

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 Wal

Details

AGLC: R v Wal [2011] QCA 264
Case: [2011] QCA 264
Decision Date: 30 September 2011

CaseChat Overview and Summary

The appellant in this case was convicted in the County Court of Victoria of maintaining a sexual relationship with a child. The respondent agrees that a new trial is necessary, but contests the basis for such a retrial. The Court of Appeal was tasked with determining whether the primary judge's misdirections or failures to direct the jury in the summing up amounted to a miscarriage of justice. This required consideration of whether the appellant's conviction should be set aside and a retrial ordered.

The court had to address whether the primary judge erred in failing to provide adequate directions to the jury regarding the limitations of using preliminary complaint evidence in this case. This included determining if the judge should have explained the potential for the child's statements to be influenced by the passage of time and external factors, and the necessity for the jury to approach such evidence with caution. The court also had to assess whether these misdirections or omissions by the primary judge led to a miscarriage of justice that warranted a new trial.

In its reasoning, the Court of Appeal found that the primary judge did indeed fail to give appropriate directions to the jury concerning the limitations of using preliminary complaint evidence. These omissions were significant, as the evidence in question was a crucial part of the prosecution's case. The court concluded that these misdirections constituted a miscarriage of justice, necessitating the setting aside of the appellant's conviction and ordering a retrial to ensure a fair trial. The appeal was thus allowed, and the conviction was set aside.

The final orders of the Court of Appeal included granting leave to amend and file an amended Notice of Appeal, allowing the appeal, setting aside the conviction, and ordering a retrial. This decision ensures that the appellant will have the opportunity to be tried anew, with the jury properly directed regarding the use of preliminary complaint evidence.

Orders

Orders of the court

1.Leave granted to amend Notice of Appeal.

2.Leave granted to file amended Notice of Appeal.

3.Allow the appeal.

4.Set aside the conviction.

5.Order a retrial.

Background

Background to the litigation

Full text does not contain this section.

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 WAL [2011] QCA 264
PARTIES:	R v WAL (appellant)
FILE NO/S:	CA No 79 of 2011 DC No 2 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Ipswich
DELIVERED EX TEMPORE ON:	30 September 2011
DELIVERED AT:	Brisbane
HEARING DATE:	30 September 2011
JUDGES:	White JA, Margaret Wilson AJA and Fryberg J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1.Leave granted to amend Notice of Appeal. 2.Leave granted to file amended Notice of Appeal. 3.Allow the appeal. 4.Set aside the conviction. 5.Order a retrial.
CATCHWORDS:	APPEAL AND NEW TRIAL – NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS – IN GENERAL – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES INVOLVING MISCARRIAGE – MISDIRECTION – where the appellant was convicted after a trial of maintaining a sexual relationship with a child – where the appellant contends that the primary judge failed to give directions to the jury explaining the limitations of the use of preliminary complaint evidence – where the respondent concurs that a new trial is necessary – whether misdirections or failures to direct the jury in the judge’s summing up amounted to a miscarriage of justice Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A Evidence Act 1977 (Qld), s 93A(1) Jones v R (1997) 143 ALR 52; [1997] HCA 12, cited R v Lillyman [1896] 2 QB 167, cited R v Mason[2006] QCA 125, cited R v RH [2005] 1 Qd R 180; [2004] QCA 225, cited
COUNSEL:	M Copley SC for the appellant R G Martin SC for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent