R v Williams

Case [2008] QCA 411

SUPREME COURT OF QUEENSLAND

CITATION:

R v Williams [2008] QCA 411

PARTIES:

R
v
WILLIAMS, Shawn Neil
(appellant)

FILE NO/S:

CA No 381 of 2007
DC No 452 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

19 December 2008

DELIVERED AT:

Brisbane

HEARING DATE:

15 September 2008

JUDGES:

Fraser JA, Cullinane and Jones JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    Appeal allowed

2.    Convictions and verdicts set aside

3.    A retrial is ordered

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where appellant convicted of one count of attempted rape and three counts of rape – where complainant made a complaint about a month after the rape was alleged to have occurred – where a witness gave evidence of that complaint at trial and described the complainant’s distressed state – whether the independent evidence of the complainant’s distressed state was admissible to prove the commission of the alleged rape

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where appellant charged with attempted rape – where trial judge did not leave s 24 of the Code (mistake of fact) to the jury on the count of attempted rape – where trial judge did leave s 24 of the Code to the jury on the possible alternative verdict of sexual assault – where there was no evidence of a mistaken belief – where defence counsel at the trial submitted that s 24 was not engaged – whether the trial judge erred in failing to leave s 24 to the jury on the count of attempted rape

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – when summing-up to the jury the trial judge used the term “her” when he ought to have used the term “his” – where the error was clearly a slip on the part of the trial judge – where immediately before and after the slip the trial judge use the correct pronoun – whether the slip by the trial judge created a miscarriage

Criminal Code 1899 (Qld), s 24

Darkan v The Queen (2006) 227 CLR 373; [2006] HCA 34, cited
Kilby v The Queen (1973) 129 CLR 460; [1973] HCA 30, cited
R v Berrell [1982] Qd R 508, cited
R v Cutts[2005] QCA 306, cited
R v Flannery [1969] VR 586, cited
R v Link (1992) 60 A Crim R 264; [1992] QCA 127, cited
R v Massey [1997] 1 Qd R 404; [1996] QCA 230, cited
R v McK [1986] 1 Qd R 476, cited
R v Roissetter [1984] 1 Qd R 477,…

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Details
AGLC
R v Williams [2008] QCA 411
Case
[2008] QCA 411
Decision Date

CaseChat Overview and Summary

In the matter of R v Williams, the appellant was convicted of one count of attempted rape and three counts of rape. The appeal concerned the conviction and sought a determination of whether the trial was marred by a miscarriage of justice, including issues of improper admission of evidence, non-direction to the jury, and misdirection. The Supreme Court of Victoria was the court that heard the appeal.

The appeal hinged on three main legal issues. Firstly, whether the independent evidence of the complainant's distressed state, provided by a witness who testified about the complainant's complaint made a month after the alleged rape, was admissible to prove the commission of the alleged rape. Secondly, whether the trial judge erred in not leaving section 24 of the Code, which pertains to mistake of fact, to the jury on the count of attempted rape. Lastly, whether a slip in the trial judge's summing-up to the jury, where he incorrectly used "her" instead of "his," amounted to a miscarriage of justice.

The court found that the evidence of the complainant's distressed state was not admissible as it did not meet the criteria for independent evidence under the hearsay exception. The court also determined that the trial judge should have left section 24 to the jury on the count of attempted rape, as there was no evidence of a mistaken belief and the defence counsel had not submitted that section 24 was not engaged. The court held that the trial judge's slip in pronoun usage did not create a miscarriage of justice as it was a clear slip and the trial judge used the correct pronoun immediately before and after the error. The court concluded that the cumulative effect of these errors amounted to a miscarriage of justice.

Orders

Orders of the court

1. Appeal allowed

2. Convictions and verdicts set aside

3. A retrial is ordered

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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