Proctor : April 2019
49 PROCTOR | April 2019 from case to case – where consequently, there can be no mathematical approach to fixing such a date. Application refused. R v PBC  QCA 28, 26 February 2019 Appeal against Conviction – where the appellant was convicted of indecent treatment and rape – where the complainant had consensual sexual activity with a person other than the appellant – where the appellant at trial argued that the alleged conduct was fabricated because there were similarities between the complainant’s description of the alleged conduct and the complainant’s description of the consensual sexual activity – where the prosecutor in their closing address suggested that the similarities were the result of the sexualisation of the complainant by the appellant – where the prosecutor suggested that there was a “very plausible explanation” for the incident with E which was the conduct of the appellant of which she complained – where the prosecutor said that if there was such a similarity between the intercourse with E and the alleged intercourse with the appellant, the jury might infer that she had applied her experience of sex with the appellant in choosing “the same position” with E – where the effect of that argument was that the incident with E was something which was probative of the appellant’s guilt – where that was not an argument which defence counsel should have anticipated – where the submission had the potential to make the jury think that the complainant had had no other experience, an inference that might have been fortified by the fact that she had been cross- examined only about the incident with E – where the appellant at trial was not permitted to ask the complainant about their sexual history other than the single instance of consensual sexual activity – where because the prosecutor’s argument was at least potentially misleading, it warranted some intervention by the trial judge – where defence counsel at trial did not seek a direction about the prosecutor’s argument – whether it was unfair that the appellant was not able to ask the complainant about any other previous sexual activity – whether defence counsel made a forensic decision not to seek a direction – whether there was an unfairness as there were distinct risks to the appellant’s case at trial if defence counsel chose to seek a direction or chose not to seek a direction. Appeal allowed. Quash the appellant’s conviction. The appellant be re-tried. R v Thompson  QCA 29, 26 February 2019 Appeal against Conviction – where the appellant was convicted of murder – where at the trial, it was uncontested that the appellant killed Mr Knyvett by striking him several times on the head with a bottle – where the appellant submitted at trial that the killing was the result of sudden provocation in the form of an unwanted sexual advance – where s304 Criminal Code (Qld) as amended by the Criminal Law Amendment Act 2017 (Qld) did not apply – where the primary judge erred by misdirecting the jury to apply s304 Criminal Code (Qld) as amended by the Criminal Law Amendment Act 2017 (Qld) – where a jury would have to consider whether all of the circumstances, including any relevant history between the accused person and the deceased, could have combined to cause that response on the part of an ordinary person – where the jury here was not instructed in those terms and the instructions which were given raise the possibility that the jury, or some of them, assessed the circumstances as unexceptional without considering the questions required to be answered under s304 as it was for the purposes of this case – where put another way, it is possible that the jury did not consider at all the defence of provocation which, the parties evidently agreed, they were to consider – whether “no substantial miscarriage of justice has actually occurred” – whether there was a substantial miscarriage of justice whether or not, in the court’s view, the appellant was guilty of the offence of which he was convicted – whether operation of the proviso precluded – where in order to apply the proviso in the present case, this court is asked to exercise the function of the jury to determine whether the defence of provocation was established, when quite possibly that function was not exercised by the jury – where if provocation was not considered, the jury did not determine whether the appellant was guilty of murder, but instead considered only whether the prosecution had proved the facts which it had to prove – where it may be said that in this case, the application of the proviso would “substitute trial by an appeal court for trial by jury”. Appeal allowed. Quash the appellant’s conviction. The appellant be re-tried. Prepared by Bruce Godfrey, research officer, Queensland Court of Appeal. These notes provide a brief overview of each case and extended summaries can be found at sclqld.org.au/caselaw/QCA. For detailed information, please consult the reasons for judgment. On appeal Different, better. firstname.lastname@example.org schultzlaw.com.au Sunshine Coast 07 5406 7405 Brisbane 07 3121 3240 Gold Coast 07 5512 6149 Michael Callow Travis Schultz What can your client expect when you refer them to us? As a social justice law firm, we are focused on making a positive difference in people’s lives and want affordable legal services to be accessible to all. We do this by keeping our fees lower than the industry average and charge only on the government set Federal Court Scale. 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