Court of Appeal (Qld)|2001-07-17|Before: McMurdo P, Thomas JA and Helman JSeparate reasons for judgment of each, member of the Court, each concurring as to the orders made
McMurdo P, Thomas JA and Helman JSeparate reasons for judgment of each, member of the Court, each concurring as to the orders made
Catchwords
CRIMINAL LAW – PARTICULAR OFFENCES – BURGLARY AND LIKE OFFENCES
- OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES
– RAPE AND SEXUAL
ASSAULT – where appellant convicted of breaking and entering a dwelling
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – PARTICULAR OFFENCES – BURGLARY AND LIKE OFFENCES- OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES– RAPE AND SEXUALASSAULT – where appellant convicted of breaking and entering a dwellinghouse with intent, rape andsexual assaultCRIMINAL LAW – EVIDENCE– SIMILAR FACT – ADMISSIBILITY GENERALLY – whether propensityevidence properly admitted– purposes served by the reception ofpropensity evidence – purposes included identifying offender and rebuttinginnocentexplanation for his fingerprints near point of entry – whetherprobative value outweighed the prejudicial effect – adequacyof evidenceto pass the test in Pfennig – no need for striking similarity inall respectsCRIMINAL LAW – EVIDENCE – SIMILAR FACTS –RELEVANCE – PROOF OF IDENTITY OF THE ACCUSED – GENERALLY –whether a direction must be given such that the jury must be satisfied beyond areasonable doubt of the propensity evidence beforeit can be used to support an
inference of guilt – where the identify of the perpetrator is in question
– ‘signature
test’ rejected – whether need for separate
proof beyond reasonable doubt of each similar fact when the purpose of the
evidence is to support the identification of the accused as the perpetrator
–McGranaghan test rejected – whether propensity evidence
should be regarded as an indispensable intermediate step in the reasoning
process
towards an inference of guilt – where such direction need not be
given and the propensity evidence is to be regarded as a strand
in assisting to
identify the offender and not a separate link which itself proves the identity
of the offenderEVIDENCE – ADMISSIBILITY AND RELEVENCY –
HEARSAY STATEMENTS – whether admissions of appellant made by his counsel
on earlier plea of guilty were admissible to prove earlier incident –
whether counsel an agent with ostensible authority to
make statements on the
appellants behalf – prima facie admissible although the truth of such
admissions might be rebutted CRIMINAL LAW – APPEAL AND NEW TRIAL
AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST
SENTENCE
– APPEAL BY ATTORNEY GENERAL OR OTHER LAW OFFICER –
APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON
–
where ambiguity in orders endorsed on indictment – amendment of judgment
– where appropriate sentence for break
and enter followed by rape of the
occupant in her own home was held to be 15 years Criminal Code, s
644, s 657ACriminal Practice Rules 1999 (Qld), r 62Evidence
Act 1997 (Qld), s 53Penalties and Sentences Act 1992 (Qld), Pt
9ARecording of Evidence Act 1962 (Qld), s 10Adams
[1997] QCA 237
CA No 158 of 1997, 8 August 1997, distinguishedBarclay
[1999] QCA 457
CA No 272 of 1999, 3 December 1999,
consideredDaphney [1999] QCA 69
CA No 328 of 1998, 16 March 1999,
consideredKing [1995] QCA 77
CA No 483 of 1994, 22 February 1995,
consideredKRM v The Queen [2001] HCA 11, appliedMcGranaghan
[1995] 1 Cr App R 559, distinguishedMichaux CA No 49 of 1984, 29
June 1984, distinguishedPfennig v The Queen [1995] HCA 7
(1995) 182 CLR 461,
appliedPress [1997] QCA 77
CA No 489 of 1996, 14 February 1997,
distinguishedR v Best [1998] VICSC 125
CA No 57 of 1998, 23 July
1998, consideredR v Birks (1990) 19 NSWLR 677, consideredR v
1995, 4 April 1995, consideredWilliams [1996] QCA 216
CA No 136 of
1996, 6 June 1996, considered
Judgment (24 paragraphs)
[1]
CRIMINAL LAW - PARTICULAR OFFENCES - BURGLARY AND LIKE OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT - where appellant convicted of breaking and entering a dwelling house with intent, rape and sexual assault
[2]
CRIMINAL LAW - EVIDENCE - SIMILAR FACT - ADMISSIBILITY GENERALLY - whether propensity evidence properly admitted - purposes served by the reception of propensity evidence - purposes included identifying offender and rebutting innocent explanation for his fingerprints near point of entry - whether probative value outweighed the prejudicial effect - adequacy of evidence to pass the test in Pfennig - no need for striking similarity in all respects
[3]
CRIMINAL LAW - EVIDENCE - SIMILAR FACTS - RELEVANCE - PROOF OF IDENTITY OF THE ACCUSED - GENERALLY - whether a direction must be given such that the jury must be satisfied beyond a reasonable doubt of the propensity evidence before it can be used to support an inference of guilt - where the identify of the perpetrator is in question - 'signature test' rejected - whether need for separate proof beyond reasonable doubt of each similar fact when the purpose of the evidence is to support the identification of the accused as the perpetrator -McGranaghan test rejected - whether propensity evidence should be regarded as an indispensable intermediate step in the reasoning process towards an inference of guilt - where such direction need not be given and the propensity evidence is to be regarded as a strand in assisting to identify the offender and not a separate link which itself proves the identity of the offender
[4]
EVIDENCE - ADMISSIBILITY AND RELEVENCY - HEARSAY STATEMENTS - whether admissions of appellant made by his counsel on earlier plea of guilty were admissible to prove earlier incident - whether counsel an agent with ostensible authority to make statements on the appellants behalf - prima facie admissible although the truth of such admissions might be rebutted
[5]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY GENERAL OR OTHER LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE - OFFENCES AGAINST THE PERSON - where ambiguity in orders endorsed on indictment - amendment of judgment - where appropriate sentence for break and enter followed by rape of the occupant in her own home was held to be 15 years