SUPREME COURT OF QUEENSLAND
CITATION: R v Willersdorf [2001] QCA 183 PARTIES: R
v
WILLERSDORF, Shane Edwin
(applicant/appellant)FILE NO/S: CA No 333 of 2000
DC No 1579 of 2000DIVISION: Court of Appeal PROCEEDING: Appeal against Conviction and Sentence ORIGINATING COURT: District Court at Brisbane
DELIVERED ON: 15 May 2001 DELIVERED AT: Brisbane HEARING DATE: 3 May 2001 JUDGES: McPherson and Thomas JJA, Chesterman J
Separate reasons for judgment of each member of the Court; each concurring as to the orders madeORDER: 1) Appeal against conviction dismissed;
2) Application for leave to appeal against sentence refused.
CATCHWORDS: CRIMINAL LAW – PARTICULAR OFFENCES –OFFENCES – PROPERTY OFFENCES – ROBBERY – GENERALLY - AGGRAVATION – appellant convicted of numerous charges including robbery with personal violence
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – ALTERNATIVE VERDICTS – GENERALLY- DIRECTION TO JURY – OTHER MATTERS – where trial judge directed jury in terms of s 411 of the Criminal Code and failed to direct jury as to an alternative charge of robbery simpliciter under s 409 – nature of judge’s duty to inform juries of available alternative verdicts – Rehavi discussed and distinguished – whether finding of threat without actual violence reasonably open – test is whether alternative verdict fairly arises for consideration on the whole of the evidence
CRIMINAL LAW – EVIDENCE – EVIDENCE OF SEXUAL EXPERIENCE, REPUTATION – proposed cross examination of complainant went to credit only and not to a fact in issue – application of s 4 Criminal Law (Sexual Offences) Act 1978
Criminal Code s 409, s 411, s575
Criminal Law (Sexual Offences) Act 1978 (Qld)Gilbert v The Queen [2000] 74 ALJR 676, considered
Rehavi [1999] 2 Qd R 640, considered
The Queen v De Simoni (1981) 147 CLR 383, consideredCOUNSEL: P Callaghan for appellant
C Heaton for respondentSOLICITORS: Legal Aid Queensland for appellant
Director of Public Prosecutions (Queensland) for respondent
McPHERSON JA: The appellant's story that he and the complainant agreed to fake a robbery by his tying her up, damaging property in her home, and removing money and other items of value from her home, displays much more imagination than common sense. According to his account of it, the plan was agreed upon in order to placate her supposed boyfriend whose imminent return she was expecting.
In the time taken to do all those things, the appellant could have left the place and been well away from it before any boyfriend arrived home. The jury were rightly incredulous about the story he told, and the trial judge was plainly correct in refusing to exercise his discretion to permit cross-examination of the complainant about her prior sexual activity with the alleged boyfriend.
I agree that, for the reasons given by Thomas JA, this appeal should be dismissed and that the application for leave to appeal against sentence should be refused.
THOMAS JA: The appellant was tried in the District Court before a jury on eight counts. Verdicts were returned…
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- AGLC
- R v Willersdorf [2001] QCA 183
- Case
- [2001] QCA 183
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the trial judge adequately informed the jury about the alternative charge of robbery simpliciter, as opposed to robbery with personal violence. The court examined the obligation of the trial judge under sections 411 and 409 of the Criminal Code to direct the jury on all available alternative verdicts, where these are reasonably open on the evidence. The court referenced and distinguished the case of Rehavi, highlighting the importance of whether the alternative verdict is fairly supported by the evidence presented. Additionally, the court considered whether a finding of a threat without actual violence was reasonably open, based on the evidence.
The court found that the trial judge's directions to the jury were adequate, as the alternative charge of robbery simpliciter was not reasonably open on the evidence. The court concluded that the judge correctly assessed the evidence and the applicable legal standards. Furthermore, the court held that the proposed cross-examination concerning the complainant's sexual experience was inadmissible as it pertained only to the complainant's credit and not to a fact in issue, consistent with section 4 of the Criminal Law (Sexual Offences) Act 1978.
As a result of these findings, the appeal against the conviction was dismissed, and the application for leave to appeal against the sentence was also refused. The court’s decision affirmed the trial judge's handling of the case, upholding the convictions and rejecting the grounds for appeal.
Orders
Orders of the court
1) Appeal against conviction dismissed;
2) 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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