R v Winchester

Case [2011] QCA 374

SUPREME COURT OF QUEENSLAND

CITATION:

R v Winchester [2011] QCA 374

PARTIES:

R
v
WINCHESTER, Barry David
(applicant/appellant)

FILE NOS:

CA No 6 of 2011
CA No 74 of 2011
DC No 2641 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction
Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

16 December 2011

DELIVERED AT:

Brisbane

HEARING DATE:

22 September 2011

JUDGES:

Muir and Chesterman JJA and Fryberg J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

The appeal against conviction be allowed but only to the extent now specified.1.   

The convictions in respect of counts 5, 7, 8, 15, 17, 20 and 24 be set aside.2.   

There be a retrial of those counts.3.   

The application for leave to appeal against the sentence imposed for count 29 be allowed.4.   

The sentence imposed in respect of count 29 be set aside and the re-sentencing proceeding in respect of that count be remitted to the District Court to await the retrial of counts 5, 7, 8, 15, 17, 20 and 24 unless otherwise ordered by this Court or a judge of the District Court.5.   

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was convicted of 21 sexual offences against a female complainant child including six counts of rape and one count of maintaining a sexual relationship with a child – where the appellant was acquitted of eight sexual offences against the complainant including one count of rape – where the primary judge attributed the jury’s differing verdicts to their exercising caution where there was some evidence capable of casting doubt on the complainant’s recollections – whether the verdicts of acquittal were inconsistent with the guilty verdicts

CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – where the appellant raised additional matters on appeal which could have been, or were in fact, raised at trial – where the appellant argued that these additional matters established that the complainant’s evidence lacked credibility – whether having regard to all of the evidence the jury could be satisfied beyond reasonable doubt of the appellant’s guilt

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – RAPE AND SEXUAL ASSAULT – CONSENT – GENERALLY – where the appellant on a number of occasions allegedly promised the complainant a horse in return for sexual intercourse – where there was evidence that the appellant threatened the complainant with violence on other occasions prior to intercourse – where the primary judge in his summing up directed the jury on the relevance of the threats and promises to the issue of consent –whether the primary judge erred in directing the jury on consent – whether the complainant’s consent was freely and voluntarily given

Criminal Code 1899 (Qld), s 348, s 349, Ch 32, s 668E(1A)
Evidence Act 1977 (Qld),…

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R v Winchester [2011] QCA 374
Case
[2011] QCA 374
Decision Date

CaseChat Overview and Summary

The appellant was convicted of 21 sexual offences against a female complainant child, including six counts of rape and one count of maintaining a sexual relationship with a child, while acquitted of eight sexual offences against the complainant including one count of rape. The appellant appealed against the convictions and sentence, arguing that the verdicts of acquittal were inconsistent with the guilty verdicts and that the complainant’s evidence lacked credibility. The court had to determine whether the verdicts of acquittal were inconsistent with the guilty verdicts, and whether the jury could be satisfied beyond reasonable doubt of the appellant’s guilt.

The court found that the primary judge had attributed the differing verdicts to the jury exercising caution where there was some evidence capable of casting doubt on the complainant’s recollections. The court noted that the appellant raised additional matters on appeal which could have been, or were in fact, raised at trial. However, the court found that the evidence was sufficient for the jury to be satisfied beyond reasonable doubt of the appellant’s guilt. The court also found that the primary judge had not erred in directing the jury on the relevance of the threats and promises to the issue of consent. The court found that the complainant’s consent was not freely and voluntarily given.

The appeal against conviction was allowed but only to the extent now specified. The convictions in respect of counts 5, 7, 8, 15, 17, 20 and 24 were set aside, and a retrial of those counts was ordered. The application for leave to appeal against the sentence imposed for count 29 was allowed, and the sentence imposed in respect of count 29 was set aside. The re-sentencing proceeding in respect of that count was remitted to the District Court to await the retrial of counts 5, 7, 8, 15, 17, 20 and 24 unless otherwise ordered by this Court or a judge of the District Court.

Orders

Orders of the court

The appeal against conviction be allowed but only to the extent now specified.1.

The convictions in respect of counts 5, 7, 8, 15, 17, 20 and 24 be set aside.2.

There be a retrial of those counts.3.

The application for leave to appeal against the sentence imposed for count 29 be allowed.4.

The sentence imposed in respect of count 29 be set aside and the re-sentencing proceeding in respect of that count be remitted to the District Court to await the retrial of counts 5, 7, 8, 15, 17, 20 and 24 unless otherwise ordered by this Court or a judge of the District Court.5.

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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