R v York

Case [2001] QCA 408 28 September 2001

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SUPREME COURT OF QUEENSLAND

CITATION: R v York [2001] QCA 408

PARTIES: R
v
YORK, Jane Therena
(appellant)

FILE NO/S: CA No 124 of 2001
DC No 413 of 2000

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction

ORIGINATING COURT:
District Court at Maroochydore

DELIVERED ON: 28 September 2001

DELIVERED AT: Brisbane

HEARING DATE: 6 September 2001

JUDGES: Davies and Thomas JJA, Wilson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

ORDER: Appeal allowed. Conviction set aside with a direction for retrial.

CATCHWORDS:
CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – ASSAULT – where appellant convicted of assault occasioning bodily harm – where defence of provocation left open

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS – CHARACTER AND PREVIOUS CONVICTIONS – ADMISSIBILITY IN CROSS EXAMINATION – where trial judge refused to admit evidence of appellant’s previous conviction of assault against the same complainant fifteen months earlier – where trial judge subsequently exercised discretion under s 15 Evidence Act to allow cross examination of the appellant as to her previous conviction

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – whether the trial judge erred in allowing such cross examination – where the previous conviction lacked capacity to diminish appellant’s credibility as a witness – discretion under s15 Evidence Act needs to be exercised sparingly – where any valid basis for the exercise of the discretion under s15 Evidence Act

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PARTICULAR GROUNDS – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – whether details of earlier assault admissible – possible relevance as relationship evidence, as showing hostility or motive, or to rebut defence of provocation or to make complainant’s story more comprehensible – factors relevant to exclusion of such evidence in exercise of discretion

Evidence Act 1977 (Qld), s 15

Phillips v The Queen (1985) 159 CLR 45, applied
BRS v The Queen (1997) 191 CLR 275, considered
Chevathen and Dorrick [2001] QCA 337; CA Nos 301 and 31 of 2000, 21 June 2001, considered
Gipp v The Queen (1998) 194 CLR 106, considered
R v Kenward [2000] QCA 482; CA No 100 of 2000, 24 November 2000, considered
KRM v The Queen (2001) 75 ALJR 550, considered
Makin v Attorney-General for NSW [1894] AC 57, considered
R v Morrison [2001] QCA 184; CA No 150 of 2000, 17 May 2001, considered
R v Hasler, Ex Parte Attorney-General [1987] 1 Qd R 239, considered
R v S [2000] 113 A Crim R 429
R v Symonds [2001] QCA 199; CA No 366 of 2000, 1 June 2000, considered
R v Witham [1962] Qd R 49, considered
R v Rankin [2000] QCA 54; CA No 322, 3 March 2000, considered
R v LSS [1998]…

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 York

Details

AGLC: R v York [2001] QCA 408
Case: [2001] QCA 408
Decision Date: 28 September 2001

CaseChat Overview and Summary

The appellant in this case was convicted of assault occasioning bodily harm, with the defence of provocation left open. The case was appealed on the basis that the trial judge improperly allowed cross-examination regarding a previous conviction of assault against the same complainant. The appellant argued that the previous conviction was too remote in time and lacked the capacity to diminish her credibility as a witness. The trial judge had exercised his discretion under section 15 of the Evidence Act to permit the cross-examination.

The legal issues before the court were whether the trial judge erred in exercising his discretion to allow the cross-examination and whether the previous conviction had any valid basis to diminish the appellant's credibility. The court considered the factors relevant to the exclusion of such evidence in the exercise of the discretion under section 15 of the Evidence Act. The court also examined whether the details of the earlier assault were admissible for any other purpose, such as relevance as relationship evidence, showing hostility or motive, or to rebut the defence of provocation or to make the complainant's story more comprehensible.

The court found that the trial judge had erred in allowing the cross-examination, as the previous conviction lacked the capacity to diminish the appellant's credibility as a witness. The court held that the discretion under section 15 of the Evidence Act needed to be exercised sparingly, and any valid basis for the exercise of the discretion must be established. The court also found that the details of the earlier assault were not admissible for any other purpose. The appeal was allowed, the conviction was set aside, and a direction for retrial was given.

Orders

Orders of the court

Appeal allowed. Conviction set aside with a direction for retrial.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v York [2001] QCA 408

Most Recent Citation

R v C [2002] QCA 82

Cases citing this decision · 1 of 1 shown

R v C
[2002] QCA 82 Para 1

…charged with the rape of one girl) had raped three girls including the complainant.[4] [1][2001] QCA 468 paras 24 to 32. [2][2001] QCA 408 paras 23 to 24. [3][2001] QCA 184 at para 25. [4] R v Hasler ex parte Attorney-General (1987) 1 Qd R 239, 243, 254-255.…

View all 1 citing cases →

Cases cited in this decision · 13 of 13 shown

R v Self
[2001] QCA 338 Para 1

…. [7](1998) QCA 303, para 31 [8][2000] QCA 482, especially paras 8, 9 and 15 [9][2000] QCA 54, para 23 [10][2001] QCA 337, paras 34 to 38 [11][2001] QCA 338, paras 27 to 41 [12] KRM above at para 25, citing Noor Mohamed v The King [1949] AC 182, 192-193, 195 [13][1894] AC 57, 65 [14][1987] 1 Qd R 239 [15][2001] Q…
R v Chevathen & Dorrick
[2001] QCA 337 Para 1

…275 [5](1998) 194 CLR 106 [6]Above. [7](1998) QCA 303, para 31 [8][2000] QCA 482, especially paras 8, 9 and 15 [9][2000] QCA 54, para 23 [10][2001] QCA 337, paras 34 to 38 [11][2001] QCA 338, paras 27 to 41 [12] KRM above at para 25, citing Noor Mohamed v The King [1949] AC 182, 192-193, 195 [13][1894] AC 57, 65…
R v SCA
[2001] QCA 199 Para 1

…erate against the granting of such leave. [1] KRM v The Queen (2001) 75 ALJR 550 at para 25, 26 per McHugh J [2](1985) 159 CLR 45; cf R v Symonds [2001] QCA 199 at para 4.…
R v Morrison
[2001] QCA 184 Para 1

…27 to 41 [12] KRM above at para 25, citing Noor Mohamed v The King [1949] AC 182, 192-193, 195 [13][1894] AC 57, 65 [14][1987] 1 Qd R 239 [15][2001] QCA 184 [16][2000] 113 A Crim R 429…
KRM v The Queen
[2001] HCA 11 Para 1

…e important factors identified by the High Court in Phillips v The Queen [2] that operate against the granting of such leave. [1] KRM v The Queen (2001) 75 ALJR 550 at para 25, 26 per McHugh J [2](1985) 159 CLR 45; cf R v Symonds [2001] QCA 199 at para 4.…
R v Kenward
[2000] QCA 482 Para 1

…ily have brought out previous convictions of the accused. [4](1997) 191 CLR 275 [5](1998) 194 CLR 106 [6]Above. [7](1998) QCA 303, para 31 [8][2000] QCA 482, especially paras 8, 9 and 15 [9][2000] QCA 54, para 23 [10][2001] QCA 337, paras 34 to 38 [11][2001] QCA 338, paras 27 to 41 [12] KRM above at para 25, citi…
R v Rankin
[2000] QCA 54 Para 1

…accused. [4](1997) 191 CLR 275 [5](1998) 194 CLR 106 [6]Above. [7](1998) QCA 303, para 31 [8][2000] QCA 482, especially paras 8, 9 and 15 [9][2000] QCA 54, para 23 [10][2001] QCA 337, paras 34 to 38 [11][2001] QCA 338, paras 27 to 41 [12] KRM above at para 25, citing Noor Mohamed v The King [1949] AC 182, 192-1…
R v LSS
[1998] QCA 303

…[1962] Qd R 49, considered R v Rankin [2000] QCA 54; CA No 322, 3 March 2000, considered R v LSS [1998] QCA 303; CA No 128 of 1998, 2 October 1998, considered R v Self [2001] QCA 338; CA No 77 of 2001, 24 August 2001, considered…
Gipp v The Queen
[1998] HCATrans 212

…sidered Chevathen and Dorrick [2001] QCA 337; CA Nos 301 and 31 of 2000, 21 June 2001, considered Gipp v The Queen (1998) 194 CLR 106, considered R v Kenward [2000] QCA 482; CA No 100 of 2000, 24 November 2000, considered KRM v The Queen (2001) 75 ALJR 550, considered Makin v Attorney-General for NSW [1894] AC 57, conside…
BRS v The Queen
[1997] HCA 47 Para 1

…e, was regarded as insufficient to justify its reception when this would necessarily have brought out previous convictions of the accused. [4](1997) 191 CLR 275 [5](1998) 194 CLR 106 [6]Above. [7](1998) QCA 303, para 31 [8][2000] QCA 482, especially paras 8, 9 and 15 [9][2000] QCA 54, para 23 [10][2001] QCA 337, para…
Phillips v The Queen
[1985] HCA 79

…rs relevant to exclusion of such evidence in exercise of discretion Evidence Act 1977 (Qld), s 15 Phillips v The Queen (1985) 159 CLR 45, applied BRS v The Queen (1997) 191 CLR 275, considered Chevathen and Dorrick [2001] QCA 337; CA Nos 301 and 31 of 2000, 21 June 2001, considered Gipp v The Queen (1998) 194 CLR 106, conside…
[1894] AC 57
[1894] AC 57 Para 1

…, paras 34 to 38 [11][2001] QCA 338, paras 27 to 41 [12] KRM above at para 25, citing Noor Mohamed v The King [1949] AC 182, 192-193, 195 [13][1894] AC 57, 65 [14][1987] 1 Qd R 239 [15][2001] QCA 184 [16][2000] 113 A Crim R 429…
[1949] AC 182
[1949] AC 182 Para 1

…A 54, para 23 [10][2001] QCA 337, paras 34 to 38 [11][2001] QCA 338, paras 27 to 41 [12] KRM above at para 25, citing Noor Mohamed v The King [1949] AC 182, 192-193, 195 [13][1894] AC 57, 65 [14][1987] 1 Qd R 239 [15][2001] QCA 184 [16][2000] 113 A Crim R 429…

Legislation cited in this decision · 1

Evidence Act 1977 (Qld)
15 2 mentions (from Para 1)

CITATION:	R v York [2001] QCA 408
PARTIES:	R v YORK, Jane Therena (appellant)
FILE NO/S:	CA No 124 of 2001 DC No 413 of 2000
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	28 September 2001
DELIVERED AT:	Brisbane
HEARING DATE:	6 September 2001
JUDGES:	Davies and Thomas JJA, Wilson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made.
ORDER:	Appeal allowed. Conviction set aside with a direction for retrial.
CATCHWORDS:	CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – ASSAULT – where appellant convicted of assault occasioning bodily harm – where defence of provocation left open CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS – CHARACTER AND PREVIOUS CONVICTIONS – ADMISSIBILITY IN CROSS EXAMINATION – where trial judge refused to admit evidence of appellant’s previous conviction of assault against the same complainant fifteen months earlier – where trial judge subsequently exercised discretion under s 15 Evidence Act to allow cross examination of the appellant as to her previous conviction CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – whether the trial judge erred in allowing such cross examination – where the previous conviction lacked capacity to diminish appellant’s credibility as a witness – discretion under s15 Evidence Act needs to be exercised sparingly – where any valid basis for the exercise of the discretion under s15 Evidence Act CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PARTICULAR GROUNDS – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – whether details of earlier assault admissible – possible relevance as relationship evidence, as showing hostility or motive, or to rebut defence of provocation or to make complainant’s story more comprehensible – factors relevant to exclusion of such evidence in exercise of discretion Evidence Act 1977 (Qld), s 15 Phillips v The Queen (1985) 159 CLR 45, applied BRS v The Queen (1997) 191 CLR 275, considered Chevathen and Dorrick [2001] QCA 337; CA Nos 301 and 31 of 2000, 21 June 2001, considered Gipp v The Queen (1998) 194 CLR 106, considered R v Kenward [2000] QCA 482; CA No 100 of 2000, 24 November 2000, considered KRM v The Queen (2001) 75 ALJR 550, considered Makin v Attorney-General for NSW [1894] AC 57, considered R v Morrison [2001] QCA 184; CA No 150 of 2000, 17 May 2001, considered R v Hasler, Ex Parte Attorney-General [1987] 1 Qd R 239, considered R v S [2000] 113 A Crim R 429 R v Symonds [2001] QCA 199; CA No 366 of 2000, 1 June 2000, considered R v Witham [1962] Qd R 49, considered R v Rankin [2000] QCA 54; CA No 322, 3 March 2000, considered R v LSS [1998]…