W v R

Case [2006] TASSC 52 30 June 2006

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[2006] TASSC 52

CITATION: W v R [2006] TASSC 52

PARTIES:  W
  v
  R

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 66/2005
DELIVERED ON:  30 June 2006
DELIVERED AT:  Hobart
HEARING DATE:  8, 16 March 2006
JUDGMENT OF:  Slicer, Evans and Blow JJ

CATCHWORDS:

Criminal Law – Appeal and new trial and inquiry after conviction – Appeal and new trial – Miscarriage of justice – Particular circumstances involving miscarriage – Misdirection and non-direction – Misdirection as to consent.

Weiss v R (2005) 80 ALJR 444, followed.
Aust Dig Criminal Law [958]

Criminal Law – Evidence – Evidentiary matter relating to witnesses and accused persons – Evidence of sexual experience, reputation and morality – Credibility – Character.

Evidence Act 2001 (Tas), ss102, 104(2), 110, 112.
Aust Dig Criminal Law [574]

REPRESENTATION:

Counsel:
             Appellant:  D J Gunson SC and E A Avery
             Respondent:  D Coates SC and P Jones
Solicitors:
             Appellant:  Avery Partners
             Respondent:  Director of Public Prosecutions

Judgment Number: [2006] TASSC 52
Number of paragraphs: 140

Serial No 52/2006
File No CCA 66/2005

W v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

SLICER J
EVANS J
BLOW J
30 June 2006

Orders of the Court

Appeal allowed as to the conviction on count 8 and the sentence.

Conviction on count 8 quashed and the sentence quashed.

The appellant be re-tried on count 8.

The appellant be remanded on bail to appear for sentencing on the convictions on counts 3, 4 and 14.

The publication of the reasons for judgment is confined to the parties until the final disposal of count 8.

Serial No 52/2006
File No CCA 66/2005

W v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

SLICER J
30 June 2006

The appellant was tried on an indictment alleging 14 counts of rape and assault said to have occurred on identified occasions between 9 August 2003 and 1 February 2004.

The appellant and the complainant were married in November 2002. Between 28 January and 1 February 2004, a series of incidents occurred at their home which culminated in a complaint to police of criminal conduct and the eventual charging of the appellant with the acts stated in the indictment. All of the events were said to have occurred within the family home. Particulars of each count and the verdicts returned by the jury were:

Count Date Particulars Verdict

1 9 August 2003 Anal rape Not guilty

2 4 October 2003 Anal rape Not guilty

3 28 January 2004 Assault by punching Guilty

4 28 January 2004 Assault by dragging and kicking Guilty

5 28 January 2004 Attempted anal rape Not guilty

6 28 January 2004 Vaginal rape Not guilty

7 29 January 2004 Vaginal rape Not guilty

8 30 January 2004 Anal rape Guilty

9 30 January 2004 Vaginal rape Not guilty

10 30 January 2004 Oral rape Not guilty

11 31 January 2004 Vaginal rape Not guilty

12 31 January 2004 Oral rape Not guilty

13 31 January…

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 W v R

Details

AGLC: W v R [2006] TASSC 52
Case: [2006] TASSC 52
Decision Date: 30 June 2006

CaseChat Overview and Summary

The appeal before the High Court involved the respondent, W, who was convicted of sexual offences against the appellant, R. W appealed the decision on the grounds that the trial judge had misdirected the jury in relation to the issue of consent, resulting in a miscarriage of justice. The appeal raised questions about the adequacy of the trial judge's directions to the jury regarding consent and whether such misdirection was so significant as to warrant a new trial. The High Court was tasked with reviewing the trial judge's directions to determine whether the misdirection was material and affected the outcome of the trial.

The court examined the trial judge's directions to the jury, particularly those concerning the concept of consent in the context of sexual offences. The court considered whether the trial judge's directions correctly reflected the legal principles governing consent, and if there were any omissions or errors that could have led to a misdirection. The court also assessed whether any such misdirection was so substantial that it could have affected the jury's decision, leading to a miscarriage of justice. The appeal hinged on the precise nature of the misdirection and its impact on the jury's deliberations.

The High Court found that the trial judge's directions did contain errors and omissions that amounted to a misdirection on the issue of consent. The court concluded that the misdirection was material, as it potentially influenced the jury's understanding of the consent element of the offences, leading to an unsafe and unsatisfactory verdict. Given the significance of the misdirection, the court held that a new trial was necessary to rectify the error and ensure a fair trial for the respondent. The appeal was allowed, and the convictions were quashed.

The High Court ordered a new trial for the respondent to be held, ensuring that the jury would receive accurate directions on the issue of consent in the context of the sexual offences. The court's decision underscored the importance of proper jury directions in criminal trials and the potential consequences of misdirection on the outcome of a trial.

Orders