R v WO

Case [2006] QCA 21

SUPREME COURT OF QUEENSLAND

CITATION:

R v WO [2006] QCA 21

PARTIES:

R
v
WO
(appellant)

FILE NO/S:

CA No 224 of 2005
DC No 396 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

10 February 2006

DELIVERED AT:

Brisbane

HEARING DATE:

1 February 2006

JUDGES:

de Jersey CJ, Williams JA and Keane JA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.  Appeal allowed
2.  Set aside the convictions on all counts
3.  Order a re-trial on all counts on which the appellant was convicted

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - CONSIDERATION OF SUMMING UP AS A WHOLE - where the appellant was charged in the Cairns District Court with one count of maintaining an unlawful relationship of a sexual nature with circumstances of aggravation, five counts of indecent treatment of a child under 16 years with circumstances of aggravation and two counts of unlawful carnal knowledge of a child under 16 years with circumstances of aggravation - where the evidence of the complainant at trial alleged a significant quantity and frequency of uncharged acts of a sexual nature - where the trial judge in summing up did not direct the jury as to the use of propensity evidence - where the context in which the jury were told that they could convict on the basis of any uncharged acts was not clear - whether as a result of the trial judge’s summing up, the accused was afforded a fair trial

Criminal Code 1899 (Qld), s 229B

BRS v R (1997) 191 CLR 275, considered
Gipp v R (1998) 194 CLR 106, considered
KRM v R [2001] HCA 11; (2001) 206 CLR 221, distinguished
R v Huebner; R v Maher [2004] QCA 98; CA Nos 291 and 301 of 2003, 6 April 2004, cited
R v Kemp [1997] 1 Qd R 383, considered

COUNSEL:

M J Byrne QC for the appellant
R G Martin SC for the respondent

SOLICITORS:

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

  1. JERSEY CJ:de   I have had the advantage of reading the reasons for judgment of Williams JA.  I agree with the orders proposed by His Honour, and with his reasons.

  1. WILLIAMS JA:  The appellant went to trial in the District Court in Cairns on an indictment charging one count of maintaining an unlawful relationship of a sexual nature with circumstances of aggravation (the relationship involved carnal knowledge, the child was under his care, and the child was under 12 years of age), five counts of indecent treatment of a child under 16 years with circumstances of aggravation (the child was under his care and under 12 years of age), and two counts of unlawful carnal knowledge of…

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Details
AGLC
R v WO [2006] QCA 21
Case
[2006] QCA 21
Decision Date

CaseChat Overview and Summary

The appeal before the Queensland Court of Appeal concerns the appellant's conviction by the Cairns District Court on one count of maintaining an unlawful relationship of a sexual nature with circumstances of aggravation, five counts of indecent treatment of a child under 16 years with circumstances of aggravation, and two counts of unlawful carnal knowledge of a child under 16 years with circumstances of aggravation. The appellant contends that the trial judge's summing up of the evidence was flawed in that it did not adequately direct the jury on the use of propensity evidence and the potential consequences of convicting based on uncharged acts. The court was required to determine whether these alleged misdirections and omissions by the trial judge resulted in a failure to ensure the appellant was afforded a fair trial.

The legal issues before the court were centred on the adequacy of the trial judge's summing up, particularly in relation to the jury's consideration of uncharged acts of a sexual nature and the potential for a conviction based on such acts. The court examined the trial judge's directions to the jury to determine whether they were sufficient to ensure the jury understood the limits and proper use of propensity evidence. The court also considered whether the context provided by the trial judge was clear enough to prevent a miscarriage of justice due to potential improper convictions based on uncharged acts. The court found that the summing up was inadequate and that the potential existed for the jury to convict the appellant based on uncharged acts without a proper understanding of the law.

The court held that the summing up was indeed flawed, as it did not adequately address the use of propensity evidence and the potential for a conviction based on uncharged acts. The court determined that the summing up failed to provide the jury with the necessary guidance to ensure a fair trial. The court considered the summing up as a whole and found that the misdirections and non-directions were significant enough to warrant setting aside the convictions and ordering a re-trial. The court noted that the failure to properly direct the jury on these matters created a substantial risk of a miscarriage of justice. Based on these findings, the court allowed the appeal, set aside the convictions on all counts, and ordered a re-trial on all counts on which the appellant was convicted.

Orders

Orders of the court

1. Appeal allowed

2. Set aside the convictions on all counts

3. Order a re-trial on all counts on which the appellant was convicted

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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