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 2010DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
Sentence ApplicationORIGINATING 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 madeORDERS:
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 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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