R v Wells - [2013] QCA 289

SUPREME COURT OF QUEENSLAND

CITATION:

R v Wells [2013] QCA 289

PARTIES:

R
v
WELLS, Brian Eric Reginald
(appellant)

FILE NO/S:

CA No 86 of 2013
DC No 33 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Rockhampton

DELIVERED ON:

Orders delivered ex tempore on 18 September 2013
Further order and reasons delivered on 4 October 2013

DELIVERED AT:

Brisbane

HEARING DATE:

18 September 2013

JUDGES:

Holmes and Morrison JJA and Henry J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Delivered ex tempore on 18 September 2013:

The appeal is allowed and the conviction is set aside.

Delivered on 4 October 2013:

The appellant should be re-tried on the count of rape.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted of one count of rape – where the appellant submitted that the verdict was unreasonable – where there were inconsistencies between the complainant’s evidence of events immediately following the offence, how and when she got home when she had disclosed the offence to others and that of other witnesses – where the complainant’s recounting of the events constituting the rape was consistent and clear – whether it was open to the jury on the whole of the evidence to be satisfied beyond reasonable doubt of the appellant’s guilt

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the appellant was convicted of one count of rape – where at the trial in March 2013, the appellant gave details of the evening the offence took place, some of which he had been unable to recall in his police interview in December 2009, and others which were inconsistent with statements he had made during that interview – where the prosecutor asserted in his closing address that those inconsistencies, including the appellant's failure to recall particular events, indicated that he had lied in giving evidence – where no application was made to the trial judge for an Edwards or Zoneff direction – where the trial judge did not require the prosecutor to identify any lies capable of indicating a consciousness of guilt – where the trial judge failed to give the jury any direction as to the use which could be made of lies – whether a miscarriage of justice occurred

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the trial judge failed to direct the jury in respect of the presence of support persons as required by s 21AW(2) of the Evidence Act when the complainant and other child witness gave pre-recorded evidence – whether a substantial miscarriage of justice occurred

Evidence Act 1977 (Qld), s 21AW(2)

Edwards v The Queen (1993) 178 CLR 193;

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 Wells

Details

AGLC: R v Wells [2013] QCA 289
Case: [2013] QCA 289
Decision Date: 18 September 2013

CaseChat Overview and Summary

The appellant, R, appealed against his conviction of one count of rape, contending that the verdict was unreasonable and that there was a miscarriage of justice. The appeal was heard in the Supreme Court of Queensland. The appellant argued that the jury's verdict was unreasonable given the inconsistencies in the complainant's and other witnesses' accounts of events immediately following the offence, the time and manner in which the complainant returned home, and the disclosure of the offence to others. Despite these discrepancies, the complainant's account of the events constituting the rape was consistent and clear. The appellant contended that it was not open to the jury to be satisfied beyond reasonable doubt of his guilt.

The court had to determine whether the jury's verdict was unreasonable or insupportable in light of the evidence presented. The court also had to consider whether there were particular circumstances amounting to a miscarriage of justice, specifically whether there was a non-direction by the trial judge regarding the lies told by the appellant. The appellant argued that the trial judge failed to give the jury any direction on how to use lies as an indicator of guilt, despite the prosecutor asserting in his closing address that the inconsistencies in the appellant's evidence indicated that he had lied. The appellant submitted that the trial judge's failure to direct the jury on this point amounted to a miscarriage of justice. Additionally, the appellant argued that the trial judge failed to direct the jury regarding the presence of support persons as required by section 21AW(2) of the Evidence Act when the complainant and a child witness gave pre-recorded evidence. The appellant contended that this omission amounted to a substantial miscarriage of justice.

The court found that the inconsistencies in the evidence did not necessarily undermine the complainant's account of the events constituting the rape, and that the jury was entitled to find the appellant guilty based on the whole of the evidence. However, the court found that the trial judge's failure to direct the jury on the use of lies as an indicator of guilt amounted to a non-direction that resulted in a miscarriage of justice. The court also found that the trial judge's failure to direct the jury on the presence of support persons amounted to a substantial miscarriage of justice. The appeal was allowed, the conviction was set aside, and the appellant was ordered to be re-tried on the count of rape.

Orders

Orders of the court

Delivered ex tempore on 18 September 2013:

The appeal is allowed and the conviction is set aside.

Delivered on 4 October 2013:

The appellant should be re-tried on the count of rape.

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 Wells [2013] QCA 289
PARTIES:	R v WELLS, Brian Eric Reginald (appellant)
FILE NO/S:	CA No 86 of 2013 DC No 33 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Rockhampton
DELIVERED ON:	Orders delivered ex tempore on 18 September 2013 Further order and reasons delivered on 4 October 2013
DELIVERED AT:	Brisbane
HEARING DATE:	18 September 2013
JUDGES:	Holmes and Morrison JJA and Henry J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Delivered ex tempore on 18 September 2013: The appeal is allowed and the conviction is set aside. Delivered on 4 October 2013: The appellant should be re-tried on the count of rape.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted of one count of rape – where the appellant submitted that the verdict was unreasonable – where there were inconsistencies between the complainant’s evidence of events immediately following the offence, how and when she got home when she had disclosed the offence to others and that of other witnesses – where the complainant’s recounting of the events constituting the rape was consistent and clear – whether it was open to the jury on the whole of the evidence to be satisfied beyond reasonable doubt of the appellant’s guilt CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the appellant was convicted of one count of rape – where at the trial in March 2013, the appellant gave details of the evening the offence took place, some of which he had been unable to recall in his police interview in December 2009, and others which were inconsistent with statements he had made during that interview – where the prosecutor asserted in his closing address that those inconsistencies, including the appellant's failure to recall particular events, indicated that he had lied in giving evidence – where no application was made to the trial judge for an Edwards or Zoneff direction – where the trial judge did not require the prosecutor to identify any lies capable of indicating a consciousness of guilt – where the trial judge failed to give the jury any direction as to the use which could be made of lies – whether a miscarriage of justice occurred CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the trial judge failed to direct the jury in respect of the presence of support persons as required by s 21AW(2) of the Evidence Act when the complainant and other child witness gave pre-recorded evidence – whether a substantial miscarriage of justice occurred Evidence Act 1977 (Qld), s 21AW(2) Edwards v The Queen (1993) 178 CLR 193;