R v Willersdorf

[2001] QCA 183

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 2000

DIVISION:

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 made

ORDER:

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, considered

COUNSEL:

P Callaghan for appellant
C Heaton for respondent

SOLICITORS:

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

1. 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.

1. 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.

1. 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.

1. THOMAS JA:  The appellant was tried in the District Court before a jury on eight counts.  Verdicts were returned…