R v Wilson - [1994] QCA 481

IN THE COURT OF APPEAL [1994] QCA 481

SUPREME COURT OF QUEENSLAND	C.A. No. 355 of 1994
Brisbane
BeforeFitzgerald P. Davies J.A. Lee J.
[R. v. Wilson]

T H E Q U E E N

PATRICK JOHN WILSON (Appellant)

FITZGERALD P.
DAVIES J.A.

LEE J.

Judgment delivered 14/11/1994

REASONS FOR JUDGMENT OF FITZGERALD P AND DAVIES JA, LEE J

SEPARATELY. ALL CONCURRING AS TO THE ORDERS MADE.

APPEAL ALLOWED. NEW TRIAL ORDERED.

CATCHWORDS:CRIMINAL LAW - Evidence - Indecent treatment of a child under the age of 16 years - appellant was de facto of complainant's mother - appellant indecently assaulted complainant at night in bedroom shared with complainant's sister - sister pretended to be asleep - sister gave evidence supporting complainant's account but differences between the two - sister was only nine years old at the time of the offence and evidence given was unsworn and four years after the event - whether trial judge needed to direct jury specifically of the danger of acting upon the corroborating evidence of the sister - whether miscarriage of justice

Counsel:S. Hamlyn-Harris for the Appellant

D. Meredith for the Respondent

Solicitors:Legal Aid Office for the Appellant
Director of Prosecutions for the Respondent
Date/s of Hearing:24 October 1994

REASONS FOR JUDGMENT - FITZGERALD P. AND DAVIES J.A.

Judgment delivered 14/11/1994

The appellant has appealed against his conviction on 9 August 1994 in the District Court at Gympie on one count of indecent treatment of a child under the age of 16 years with a circumstance of aggravation. On the same day, he was also sentenced to imprisonment for 18 months, and he has applied for leave to appeal against that sentence.

At the material time, late November 1990, the complainant's mother was the de facto wife of the appellant, who lived with the complainant and her family. Although no complaint was made until 12 July 1993, the allegations which the complainant then made related to a course of events extending from 1 January 1989 to 11 July 1993. As a result, the appellant was charged with a number of offences in relation to the complainant, including rape, unlawful carnal knowledge against the order of nature, indecent assault, and maintaining a sexual relationship with a

child under the age of 16 years. When he was first tried, he was acquitted of all charges except the present count, on which the jury could not agree. The conviction against which he has appealed was the result of a re-trial.

There were only three witnesses at the trial, the complainant, her younger sister, and her mother, whose evidence amounted to little more than an assertion that, although she had been

drinking for an extended period on the day of the incident and

had taken medication, she was asleep in the room next to where

the incident was said to have taken place, and would have heard
the complainant if she had screamed.

All three witnesses identified the material night by reference to an end of year school…

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 Wilson

Details

AGLC: R v Wilson [1994] QCA 481
Case: [1994] QCA 481
Decision Date: 14/11/1994

CaseChat Overview and Summary

The appellant, Patrick John Wilson, has appealed against his conviction and sentence for indecent treatment of a child under the age of 16 years, with a circumstance of aggravation. The appeal concerns whether the trial judge failed to adequately warn the jury of the dangers of relying on the uncorroborated and unsworn evidence of the complainant's nine-year-old sister. The Supreme Court of Queensland heard the appeal and found that the trial had indeed miscarried due to the lack of an appropriate warning regarding the reliability of the sister's evidence.

The key legal issue in this case was whether the trial judge's failure to warn the jury about the potential unreliability of the complainant's sister's evidence constituted a miscarriage of justice. The sister's evidence was crucial, as it provided the only potential corroboration of the complainant's account. The court examined whether the trial judge should have issued a specific warning about the need to carefully scrutinise the sister's evidence due to her young age, the unsworn nature of her testimony, and the time that had passed since the alleged incident.

The court found that the trial judge did not provide an adequate warning to the jury regarding the sister's evidence, and this omission could have affected the outcome of the trial. The judges agreed that the rule of practice, which requires juries to scrutinise the evidence of child witnesses with particular care, was not followed in this case. The court held that the failure to issue an appropriate warning in this case resulted in a miscarriage of justice, as the case against the appellant relied entirely on the complainant's evidence, and the sister's evidence was crucial in potentially corroborating aspects of the complainant's account.

The Court of Appeal allowed the appeal, ordered a new trial, and quashed the conviction and sentence. The court emphasised that the trial judge must give appropriate warnings to the jury about the potential unreliability of child witnesses' evidence, especially when the evidence is unsworn and given years after the alleged incident. The court also noted that the trial judge should have considered the specific factors of this case, such as the sister's young age and the discrepancies in her evidence compared to the complainant's account.

Orders