Court of Appeal (Qld)|2001-08-07|Before: McMurdo P, Thomas JA and Jones JJoint reasons for judgment of Thomas JA, and Jones J, separate reasons of McMurdo P, dissenting in part
McMurdo P, Thomas JA and Jones JJoint reasons for judgment of Thomas JA, and Jones J, separate reasons of McMurdo P, dissenting in part
Catchwords
CRIMINAL LAW – PARTICULAR OFFENCES – SEXUAL OFFENCES –
where both accuseds and complainant affected by alcohol
– where
complainant had fallen asleep and woke as one accused was having sexual
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – PARTICULAR OFFENCES – SEXUAL OFFENCES –where both accuseds and complainant affected by alcohol– wherecomplainant had fallen asleep and woke as one accused was having sexualintercourse with her and the other was lickingher breasts – where“blank spots” in complainant’s memory – whether actionsof one accused encouragedthe otherCRIMINAL LAW – JURISDICTION,PRACTICE AND PROCEDURE – JURIES – SUMMING-UP – whether judgeerred in directionconcerning application of s7(1)(c) Criminal Code and“joint enterprise” to commit offenceCRIMINAL LAW –JURISDICTION, PRACTICE AND PROCEDURE – JURIES – MISCELLANEOUS POWERSOF COURTS AND JUDGES –whether judge erred in not discharging two jurorsin circumstances where they were business associates of the complainant’smother and investigating officer’s wife, respectivelyCRIMINAL LAW– JURISDICTION, PRACTICE AND PROCEDURE – JURIES – SUMMING UP– whether judge erred in direction
concerning intoxication of complainant
and resultant loss of memory – whether direction
inadequateCRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO
ADMIT OR EXCLUDE EVIDENCE – EVIDENTIARY MATTERS RELATING TO WITNESSES
AND
ACCUSED PERSONS – whether judge erred in admission of evidence that
appellant worked as a law clerk between being charged
with offence and
trialCRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE –
JURIES – SUMMING UP – whether judge erred in direction
on lies
– whether direction deficientCRIMINAL LAW – JURISDICTION
PRACTICE AND PROCEDURE – JURIES – VERDICT – whether unsafe and
unsatisfactoryCriminal Code s 7, s 7(1)(a), s 7(1)(b), s 7(1)(c),
s 8Jury Act (Qld) 1995 s 56(1)(a)Edwards v The Queen
2000, 14 December 2000, consideredR v Lowrie and Ross [2001] 1 QdR
529, distinguishedTangye (1997) 92 A Crim R 545,
consideredWebb & Hay v R [1994] HCA 30
(1994) 181 CLR 41,
consideredZoneff v R (2000) 200 CLR 234, considered
Judgment (16 paragraphs)
[1]
CRIMINAL LAW - PARTICULAR OFFENCES - SEXUAL OFFENCES - where both accuseds and complainant affected by alcohol - where complainant had fallen asleep and woke as one accused was having sexual intercourse with her and the other was licking her breasts - where "blank spots" in complainant's memory - whether actions of one accused encouraged the other
[2]
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JURIES - SUMMING-UP - whether judge erred in direction concerning application of s7(1)(c) Criminal Code and "joint enterprise" to commit offence
[3]
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JURIES - MISCELLANEOUS POWERS OF COURTS AND JUDGES - whether judge erred in not discharging two jurors in circumstances where they were business associates of the complainant's mother and investigating officer's wife, respectively
[4]
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JURIES - SUMMING UP - whether judge erred in direction concerning intoxication of complainant and resultant loss of memory - whether direction inadequate
[5]
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - whether judge erred in admission of evidence that appellant worked as a law clerk between being charged with offence and trial
[6]
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JURIES - SUMMING UP - whether judge erred in direction on lies - whether direction deficient
[7]
CRIMINAL LAW - JURISDICTION PRACTICE AND PROCEDURE - JURIES - VERDICT - whether unsafe and unsatisfactory
[8]
Criminal Code s 7, s 7(1)(a), s 7(1)(b), s 7(1)(c), s 8