R v Watt - [2006] QCA 539

SUPREME COURT OF QUEENSLAND

CITATION:

R v Watt [2006] QCA 539

PARTIES:

R
v
WATT, Gregory Thomas
(appellant)

FILE NO/S:

CA No 272 of 2006
DC No 274 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction and Sentence

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

15 December 2006

DELIVERED AT:

Brisbane

HEARING DATE:

22 November 2006

JUDGES:

Williams, Jerrard and Keane JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeal against conviction allowed
2. Conviction and verdict set aside
3. New trial ordered on counts 2 to 5

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NONDIRECTION - appellant convicted upon verdict of jury of three counts of rape and one count of deprivation of liberty, acquitted on one count of indecent assault - sentenced to concurrent sentences of eight years imprisonment for the rape offences and two years imprisonment for deprivation of liberty - complainant gave evidence through interpreter - appellant argues denied benefit of possibility of acquittal on the basis of honest and reasonable mistake of fact as to consent - jury asked learned trial judge questions relevant to question of consent - questions not written down - learned trial judge's answers to questions did not address honest and reasonable mistake of fact - no direction given as to need for Crown to negative operation of s 24 of the Criminal Code 1899 (Qld) - whether appellant entitled to have jury directed upon the issue whether appellant honestly and reasonably mistaken as to absence of consent in relation to counts of rape - whether appellant received a fair trial according to law

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NONDIRECTION - learned trial judge's directions on corroboration - lay opinion evidence as to injuries suffered by complainant - evidence was admitted - whether evidence should have been admitted - whether direction should have been made as to the use of this evidence

Criminal Code 1899 (Qld), s 24, s 668E

Pemble v The Queen (1971) 124 CLR 107, cited
R v Cutts [2005] QCA 306; CA No 97 of 2005, 23 August 2005, applied
R v SAX [2006] QCA 397; CA No 167 of 2006, 13 October 2006, cited
R v Soloman [2006] QCA 244; CA No 1 of 2006, 23 June 2006, applied
Stevens v The Queen [2005] HCA 65; (2005) 222 ALR 40, cited

COUNSEL:

P J Davis SC, with M Dight, for the appellant
M J Copley for the respondent

SOLICITORS:

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

WILLIAMS JA: I have had the advantage of reading the reasons for judgment of Keane JA and I agree with all that is said therein. The appeal should be…

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 Watt

Details

AGLC: R v Watt [2006] QCA 539
Case: [2006] QCA 539
Decision Date: 15 December 2006

CaseChat Overview and Summary

In the case of R v Watt, the appellant was convicted by a jury of three counts of rape and one count of deprivation of liberty, while being acquitted on a count of indecent assault. The appellant was sentenced to concurrent sentences of eight years imprisonment for the rape offences and two years imprisonment for deprivation of liberty. The appellant appealed against the conviction on several grounds, including misdirection and non-direction by the trial judge, and the admission of certain evidence.

The appellant argued that he was denied the benefit of the possibility of acquittal on the basis of an honest and reasonable mistake of fact as to consent, due to the trial judge's failure to address this issue adequately in response to questions from the jury. Furthermore, the appellant contended that the trial judge did not direct the jury on the need for the Crown to negate the operation of section 24 of the Criminal Code 1899 (Qld). The court had to determine whether the appellant was entitled to have the jury directed on the issue of honest and reasonable mistake of fact regarding the absence of consent, and whether he received a fair trial according to law. Additionally, the court needed to consider whether the trial judge's directions on corroboration and the admission of lay opinion evidence as to the complainant's injuries were appropriate.

The Court of Appeal found that the trial judge's responses to the jury's questions did not adequately address the issue of honest and reasonable mistake of fact, and that the trial judge failed to direct the jury on the need for the Crown to negate the operation of section 24 of the Criminal Code. The Court of Appeal held that these errors amounted to misdirection and non-direction, which warranted the setting aside of the conviction and verdict, and the ordering of a new trial. The Court of Appeal also found that the admission of lay opinion evidence as to the complainant's injuries was not erroneous. The appeal against conviction was allowed, the conviction and verdict were set aside, and a new trial was ordered on counts 2 to 5.

Orders

Orders of the court

1. Appeal against conviction allowed

2. Conviction and verdict set aside

3. New trial ordered on counts 2 to 5

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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CITATION:	R v Watt [2006] QCA 539
PARTIES:	R v WATT, Gregory Thomas (appellant)
FILE NO/S:	CA No 272 of 2006 DC No 274 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction and Sentence
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	15 December 2006
DELIVERED AT:	Brisbane
HEARING DATE:	22 November 2006
JUDGES:	Williams, Jerrard and Keane JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal against conviction allowed 2. Conviction and verdict set aside 3. New trial ordered on counts 2 to 5
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NONDIRECTION - appellant convicted upon verdict of jury of three counts of rape and one count of deprivation of liberty, acquitted on one count of indecent assault - sentenced to concurrent sentences of eight years imprisonment for the rape offences and two years imprisonment for deprivation of liberty - complainant gave evidence through interpreter - appellant argues denied benefit of possibility of acquittal on the basis of honest and reasonable mistake of fact as to consent - jury asked learned trial judge questions relevant to question of consent - questions not written down - learned trial judge's answers to questions did not address honest and reasonable mistake of fact - no direction given as to need for Crown to negative operation of s 24 of the Criminal Code 1899 (Qld) - whether appellant entitled to have jury directed upon the issue whether appellant honestly and reasonably mistaken as to absence of consent in relation to counts of rape - whether appellant received a fair trial according to law CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NONDIRECTION - learned trial judge's directions on corroboration - lay opinion evidence as to injuries suffered by complainant - evidence was admitted - whether evidence should have been admitted - whether direction should have been made as to the use of this evidence Criminal Code 1899 (Qld), s 24, s 668E Pemble v The Queen (1971) 124 CLR 107, cited R v Cutts [2005] QCA 306; CA No 97 of 2005, 23 August 2005, applied R v SAX [2006] QCA 397; CA No 167 of 2006, 13 October 2006, cited R v Soloman [2006] QCA 244; CA No 1 of 2006, 23 June 2006, applied Stevens v The Queen [2005] HCA 65; (2005) 222 ALR 40, cited
COUNSEL:	P J Davis SC, with M Dight, for the appellant M J Copley for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent