R v Y - [1995] QCA 373

IN THE COURT OF APPEAL	[1995] QCA 373
SUPREME COURT OF QUEENSLAND	C.A. No. 119 of 1995
Brisbane
Before	Fitzgerald P. McPherson J.A. Helman J.
[R. v. Y]

T H E Q U E E N

v.

Y Appellant
The President
Mr Justice McPherson
Mr Justice Helman

Judgment delivered 22/08/1995

Separate concurring reasons of the court

APPEAL ALLOWED, CONVICTION QUASHED. NEW TRIAL ORDERED

CATCHWORDS: CRIMINAL LAW - expert evidence - carnal knowledge by anal intercourse of a person not an adult - evidence that complainant sodomized by school friend earlier in same year as offence charged -whether evidence of clinical psychologist as to complainant's intellectual disability and as to complainant's inability to distinguish between reality and a dream admissible.

Counsel:	F.G .Connolly for the appellant L. Clare for the respondent
Solicitors:	Legal Aid Office for the appellant Director of Public Prosecutions, Queensland, for the
respondent
Hearing date:	25/07/1995

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 22/08/1995

The circumstances giving rise to this appeal are set out in the reasons for judgment of Helman J. I do not think it is necessary to comment on the cases to which his Honour refers except to acknowledge the authority of the majority decision in Murphy v. R. (1989) 167 C.L.R. 94. More recently, I have expressed opinions on the admissibility of expert evidence in suitable cases in R. v. Barnes (C.A. No. 421 of 1994, unreported, judgment delivered 15 February 1995). It is clear, in my view, that the trial judge erred in this case, and that the appeal must be allowed and the conviction quashed.

The expert evidence presently available does not indicate that a conviction based on the complainant’s evidence would necessarily involve a significant possibility that an innocent person had been wrongly convicted. That may be able to be established to the satisfaction of the Director of Public Prosecutions prior to any re-trial, or to the trial judge. However, those are not matters with which this Court should presently concern itself, and a new trial should be ordered.

I agree with the orders proposed by Helman J.

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the 22nd day of August 1995

I agree with the order proposed by Helman J. and with his Honour's reasons.
There appear to have been two items of relevant evidence capable of being given by Dr

Attwood at the trial. One was that the complainant's intellectual level was equivalent to that of an average child of between 8 and 11 years. The other was that, having regard to the complainant's intellectual level, one might expect his capacity to distinguish between dreams and reality to be correspondingly impaired.

On one view of it, evidence to that effect would not have carried the defence case very far. But, for the reasons given by Helman J., the appellant was entitled to have the evidence, such as it is, before the jury. The case is not one in which it is possible to say that the result would…

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 Y

Details

AGLC: R v Y [1995] QCA 373
Case: [1995] QCA 373
Decision Date: 22/08/1995

CaseChat Overview and Summary

In the case of R v Y, the appellant, Y, was convicted of unlawful anal intercourse and sentenced to imprisonment for four and a half years. The conviction arose from an incident involving the appellant and a sixteen-year-old intellectually disabled boy, who was the sole witness for the Crown. The appellant appealed against the conviction, arguing that the trial judge erred in excluding the expert evidence of a clinical psychologist, Dr. Anthony Attwood. The appeal was heard in the Supreme Court of Queensland by Fitzgerald P, McPherson JA, and Helman J. The court allowed the appeal and quashed the conviction, ordering a new trial.
The central issue in the appeal was whether the trial judge erred in excluding the expert evidence of Dr. Attwood, which related to the intellectual disability of the complainant and its potential impact on his ability to distinguish between reality and a dream. The expert evidence would have provided the jury with scientific information that was likely outside their experience and knowledge, and would have assisted them in assessing the reliability of the complainant's evidence. The court held that the trial judge's exclusion of the expert evidence constituted a significant error and a miscarriage of justice, as it deprived the jury of crucial information necessary for their assessment of the case. The court concluded that the conviction should be quashed and a new trial ordered to allow for the proper consideration of the expert evidence.

Orders