de Jersey CJ, Davies and Williams JJAJudgment of, the Court
Catchwords
CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE
PERSON – SEXUAL OFFENCES – RAPE AND SEXUAL ASSAULT
– PROOF AND
EVIDENCE – where appellant convicted of multiple counts of indecent
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THEPERSON – SEXUAL OFFENCES – RAPE AND SEXUAL ASSAULT– PROOF ANDEVIDENCE – where appellant convicted of multiple counts of indecentdealing and one of rape – wheresentenced to five years’imprisonment – where appellant appeals against conviction CRIMINALLAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL ANDNEW TRIAL – INTERFERENCE –GENERAL PRINCIPLES – whethertrial judge erred in taking too much account of the respondent’scharacteristics at thetime of sentencing – where respondent wheelchairbound after suffering strokes – where offences occurred over 30 yearsago– whether disproportionate attention was given to his age, state of heathand the circumstance that his medical conditionnecessitated incarceration insouthern Queensland away from his family – whether the sentencingdiscretion of the trial judge
miscarried to the point where the sentence imposed
is manifestly inadequateEVIDENCE – BURDEN OF PROOF PRESUMPTIONS,
AND WEIGHT AND SUFFICIENCY OF EVIDENCE –CORROBORATION – WHAT
CONSTITUTES
– whether trial judge erred in admitting evidence of two
witnesses in respect of 4 of the counts – where the two witnesses
could
not remember the date of the offences – where the witnesses noted that the
sexual impropriety occurred “regularly”
– where the
witnesses’ evidence was potentially corrobative – whether this
evidence was of more than merely slight
probative value and left to the jury
notwithstanding its prejudicial effectCRIMINAL LAW – APPEAL AND
NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL –
PARTICULAR GROUNDS –
MISDIRECTION AND NON-DIRECTION – GENERAL
MATTERS – OTHER MATTERS – where it was contended that the jury's
verdicts
were inconsistent – where three counts occurred on the same day
but the jury acquitted on the third count – whether the
trial judge had
given directions as to the selective acceptance and rejection of a
witness’s evidence, in whole or part, and
as to the possibility of
differential verdicts – whether a reasonable jury could have acquitted on
the third count CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY
AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS –
UNREASONABLEOR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED –
whether the verdict was unsafe and unsatisfactory based upon the differential
nature of the verdicts and the age of the alleged events – whether the
trial judge appropriately warned the jury as to the
potential risk of convicting
on evidence of events which occurred long ago – where, having reviewed the
evidence, the convictions
were safe and satisfactoryCRIMINAL LAW –
APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL
– PARTICULAR GROUNDS –
MISDIRECTION AND NON-DIRECTION –
CONSIDERARTION OF SUMMING UP AS A WHOLE – where the jury was directed on
the standard
of proof – whether direction was adequate – whether the
trial judge had added explanatory gloss to the classical formulation
of proof
beyond reasonable doubt – where there was elaboration but it was
insufficient to invalidate the summing upCRIMINAL LAW – APPEAL AND
NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL –
PARTICULAR GROUNDS –
IMPROPER ADMISSION OR REJECTION OF EVIDENCE –
OTHER CASES – whether trial judge erred in finding that there was
sufficient
particularization of the occasions of the counts CRIMINAL LAW
– APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW
TRIAL – IMPROPER ADMISSION OR
REJECTION OF EVIDENCE – OTHER CASES
– whether the trial judge erred in admitting evidence of the appellant
having improperly
dealt with the complainant on occasions other than those the
subject of the counts charged – whether the direction to the jury
was
adequate – where the evidence was properly admittedCRIMINAL LAW
– APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW
TRIAL – APPEAL AGAINST SENTENCE
– APPEAL BY ATTORNEY-GENERAL OR
OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE –
OFFENCES AGAINST
THE PERSON – where respondent school teacher charged with
nine counts of indecent dealing and one count of rape of a female
student
– where respondent convicted of five counts of indecent dealing and one
count of rape – where sentence of five
years’ imprisonment imposed
for rape conviction – where sentence to be suspended after 12 months
– whether sentence
manifestly inadequate CRIMINAL LAW –
APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL
– APPEAL AGAINST SENTENCE
– APPEAL BY ATTORNEY-GENERAL OR OTHER
CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE –OFFENCES
AGAINST THE
PERSON – whether sentence manifestly inadequate –
whether too much weight was given to respondent’s ill health
and other
mitigating factors in sentencing – where mitigating factors need to be
weighed against the gravity of the offences
committed - whether sentencing judge
erred in giving inadequate weight to mitigating factorsDawson v R
[1961] HCA 74
(1961) 106 CLR 1, appliedGreen v R [1971] HCA 55
(1971) 126 CLR 28,
appliedHolman v R [1996] QCA 262
[1997] 1 Qd R 373, appliedKetchup v R
[1982] Qd R 732, appliedKRM v R [2001] HCA 11
(2001) 75 ALJR 550,
appliedMacKenzie v R (1996) 190 CLR 348, appliedR v C
[2002] QCA 82, consideredR v Casey CA 262 of 1991,
consideredR v D’Arcy [2001] QCA 325, consideredR v
Fogarty CA 418 of 1996, consideredR v M [1995] 1 Qd R 213,
appliedR v Massey [1996] QCA 230
[1997] 1 Qd R 404, appliedR v Parsons CA
298 of 2000, consideredR v S [2000] 1 Qd R 445, appliedR v
Sakail [1993] 1 Qd R 312, applied
Judgment (28 paragraphs)
[1]
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT - PROOF AND EVIDENCE - where appellant convicted of multiple counts of indecent dealing and one of rape - where sentenced to five years' imprisonment - where appellant appeals against conviction
[2]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - INTERFERENCE - GENERAL PRINCIPLES - whether trial judge erred in taking too much account of the respondent's characteristics at the time of sentencing - where respondent wheelchair bound after suffering strokes - where offences occurred over 30 years ago - whether disproportionate attention was given to his age, state of heath and the circumstance that his medical condition necessitated incarceration in southern Queensland away from his family - whether the sentencing discretion of the trial judge miscarried to the point where the sentence imposed is manifestly inadequate
[3]
EVIDENCE - BURDEN OF PROOF PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE -CORROBORATION - WHAT CONSTITUTES - whether trial judge erred in admitting evidence of two witnesses in respect of 4 of the counts - where the two witnesses could not remember the date of the offences - where the witnesses noted that the sexual impropriety occurred "regularly" - where the witnesses' evidence was potentially corrobative - whether this evidence was of more than merely slight probative value and left to the jury notwithstanding its prejudicial effect
[4]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - OTHER MATTERS - where it was contended that the jury's verdicts were inconsistent - where three counts occurred on the same day but the jury acquitted on the third count - whether the trial judge had given directions as to the selective acceptance and rejection of a witness's evidence, in whole or part, and as to the possibility of differential verdicts - whether a reasonable jury could have acquitted on the third count
[5]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE
[6]
OR INSUPPORTABLE VERDICT - WHERE APPEAL DISMISSED - whether the verdict was unsafe and unsatisfactory based upon the differential nature of the verdicts and the age of the alleged events - whether the trial judge appropriately warned the jury as to the potential risk of convicting on evidence of events which occurred long ago - where, having reviewed the evidence, the convictions were safe and satisfactory
[7]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - CONSIDERARTION OF SUMMING UP AS A WHOLE - where the jury was directed on the standard of proof - whether direction was adequate - whether the trial judge had added explanatory gloss to the classical formulation of proof beyond reasonable doubt - where there was elaboration but it was insufficient to invalidate the summing up
[8]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - OTHER CASES - whether trial judge erred in finding that there was sufficient particularization of the occasions of the counts
[9]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - OTHER CASES - whether the trial judge erred in admitting evidence of the appellant having improperly dealt with the complainant on occasions other than those the subject of the counts charged - whether the direction to the jury was adequate - where the evidence was properly admitted
[10]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE - OFFENCES AGAINST THE PERSON - where respondent school teacher charged with nine counts of indecent dealing and one count of rape of a female student - where respondent convicted of five counts of indecent dealing and one count of rape - where sentence of five years' imprisonment imposed for rape conviction - where sentence to be suspended after 12 months - whether sentence manifestly inadequate
[11]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE -OFFENCES AGAINST THE PERSON - whether sentence manifestly inadequate - whether too much weight was given to respondent's ill health and other mitigating factors in sentencing - where mitigating factors need to be weighed against the gravity of the offences committed - whether sentencing judge erred in giving inadequate weight to mitigating factors