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 2005DIVISION:
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 madeORDER:
1. Appeal allowed
2. Set aside the convictions on all counts
3. Order a re-trial on all counts on which the appellant was convictedCATCHWORDS:
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, consideredCOUNSEL:
M J Byrne QC for the appellant
R G Martin SC for the respondentSOLICITORS:
Legal Aid Queensland for the applicant/appellant
Director of Public Prosecutions (Queensland) for the respondent
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.
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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- AGLC
- R v WO [2006] QCA 21
- Case
- [2006] QCA 21
- Decision Date
CaseChat Overview and Summary
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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