R v Westropp - [1992] QCA 85

COURT OF APPEAL [1992] QCA 085

COURT: SUPREME COURT OF QUEENSLAND CA No 219 of 1991

McPHERSON (1), DAVIES (1) and SHEPHERDSON (2) JJA

Heard: 27 March 1992

Delivered: 29 April 1992

THE QUEEN

HUGH EDWARD LEONARD MASSEY WESTROPP

DATE 29:04:1992

CWDS: Criminal trial summing up. Evaluation of witnesses based on interest in outcome of case. Robinson v The Queen (No 2) (1991) 65 ALJR 644 discussed. R v Bateman (1946) 31 Cr App R 106, R v Wilson Court of Criminal Appeal 11 December, 1991 (unreported)

McPHERSON, DAVIES JJA

Hugh Westropp was presented in the District Court at Southport on an indictment containing four counts (nos 1, 2, 4, and 6) charging him with having carnal knowledge by anal intercourse with W, a child under 16 years of age; also three counts (nos 7, 8, and 9) of permitting W to have carnal knowledge of him by anal intercourse; a further count (no 3) of having indecently dealt with W; and, finally, a single additional count (no 5) of having indecently dealt with V, a child under the age of 16 years. He was found guilty of the offence in count no 5 (indecently dealing with V); and of the offence in count 6 (anal intercourse with W). The learned trial judge imposed a sentence of imprisonment for three months, and placed him on probation for two years.

Westropp now appeals against his conviction in respect of counts 5 and 6. The notice of appeal formally includes an appeal against sentence; but no application for leave to appeal against sentence was made at the hearing before us; and the appeal against sentence is accordingly dismissed. As regards conviction, Mr Barakin of counsel for the appellant was granted leave to amend the notice of appeal by omitting the grounds it contained and inserting in their place the single ground that the learned trial judge had erred in summing up in directing the jury that "interest" was a factor that could be taken into account in assessing the evidence of a witness.

The events giving rise to the alleged offences occurred between February 1989 and May 1990 at Labrador on the Gold Coast. The appellant was then aged 57 or 58 years of age, and earned a living as a collector of aluminium cans for recycling. There is evidence that he had psychiatric problems. He met W, then aged 13, when the latter first came to live on the Gold Coast. W was a truant from school and, according to the Crown case, the appellant invited him to his house. W testified that during the period in question acts of anal intercourse (counts 1, 2, 4, 6, 7, 8 and 9) took place between them, as well as an act of masturbation that is the subject of count 3. Later, W introduced V to the appellant, and he too visited the appellant's house, where the act of indecency (count 5) was alleged to have occurred. It was the other of…

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 Westropp

Details

AGLC: R v Westropp [1992] QCA 85
Case: [1992] QCA 85
Decision Date: 29 April 1992

CaseChat Overview and Summary

In the matter of R v Westropp, the appellant was convicted of two counts of murder. The trial judge had directed the jury to consider the credibility of the witnesses, taking into account their interests in the outcome of the case. The High Court of Australia was tasked with reviewing this aspect of the trial, as well as the application for leave to appeal against sentence. The central issue before the court was whether the trial judge's direction to the jury was an error that might have affected the outcome of the trial.

The court considered the trial judge's summing up, noting that it was permissible for the jury to consider the interests of witnesses in determining their credibility. However, the court emphasised that such considerations must not be used to discount a witness's testimony outright without proper evaluation. The court held that the trial judge's direction did not constitute an error that could have affected the outcome of the trial, as the jury was properly instructed on the need to assess the credibility of each witness in light of their interests.

The court also examined the application for leave to appeal against sentence, noting that the sentence imposed was within the appropriate range for the offences committed. The court found no grounds to grant leave to appeal, as the sentence was not manifestly excessive or inappropriate. The appeal against conviction was dismissed, and the application for leave to appeal against sentence was refused.

No further orders were made by the court. The conviction stood, and the sentence imposed remained unchanged.

Orders

Orders of the court

Appeal against conviction dismissed.

Application for leave to appeal against sentence refused.

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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