Gipp v The Queen [1998] HCA 21

High Court of Australia Gaudron, McHugh, Kirby, Hayne and Callinan JJ Gipp v The Queen [1998] HCA 21

ORDER

1. Appeal allowed.

2. Set aside the order of the Court of Appeal of Queensland and in lieu thereof order that the appeal to that court be allowed, the convictions quashed and a new trial ordered on counts 3, 4, 5, 6 and 7.

Cur adv vult

The following written reasons for judgment were published:—

1 April 1998 Gaudron, McHugh, Kirby, Hayne and Callinan JJ

The Court announced that the appeal was allowed (McHugh and Hayne JJ dissenting) and that reasons for judgment would be published presently.

16 June 1998 Gaudron J.

1. On 1 April 1998, the Court pronounced orders allowing the appeal in this matter, setting aside the order of the Court of Appeal of Queensland, and in lieu thereof, quashing the appellant's convictions and ordering a new trial on counts 3, 4, 5, 6 and 7 of the indictment presented against him in the District Court of Queensland on 4 March 1996. I now set out the background facts and my reasons for participating in that order.

2. The appellant was indicted on seven charges involving the sexual abuse of his step-daughter. There were four charges of unlawful and indecent assault, which offences were alleged to have occurred, respectively, on 24 December 1982, on a date unknown between 9 and 25 December 1983, on a date unknown between 13 December 1985 and 23 January 1986 and on 11 May 1986. There were also three charges of rape. Those offences were alleged to have occurred, respectively, on a date unknown between 13 December 1985 and 23 January 1986, on a date unknown between 12 December 1986 and 1 February 1987 and on a date unknown between 9 December 1988 and 31 January 1989. The appellant pleaded not guilty to all charges.

3. The prosecution case consisted, in the main, of the uncorroborated evidence of the complainant. Some aspects of her evidence were open to criticism. Her evidence relating to the first two counts of unlawful and indecent assault did not accord with her earlier evidence at committal proceedings and, in consequence, the prosecution "withdrew" those counts from the jury. Moreover, she admitted that she had perjured herself at the committal proceedings by denying that she had been convicted of a drug offence and, also, by denying that she had smoked marijuana. And she readily acknowledged that she had not complained to police until approximately six years after the last of the offences charged.