QLD Criminal Law - Error in Judge's Ruling?

[Hamish Blake]

Three charges, alleging that defendent assaulted the victim on three occasions, during a specified date range. All identical except for third which included additional reference to the position of a painting on a wall that had been moved.

The pre-trial hearing was held in relation to the particulars of the charges; the judge made the following ruling:

"The first and second offences were committed by the defendent when the painting had not been moved."

The judge then went on to rule that the third charge has a remarkable difference because during that incident, the painting on the wall had moved. "This detail will allow the jury to know what evidence relates to what charge when they are considering the evidence."

Trial held. Defendent convicted on all three charges.

Years later, new evidence was discovered confirming that the painting had always been moved during the specified date range. It had never been in it's original position (as alleged in charges one and two). Therefore, the offences alleged in charges one and two were impossible.

Does anyone see, in retrospect, any error in criminal law in this case?

Could the defendent appeal on a question of fact alone, or question of mixed law and fact?

 

[Rod]

Homework?

Seems like a question of fact.

A defendant can appeal on a question of fact alone, but chances of having the appeal heard increase if there is also an error of law.

Read this paper giving some good background material: http://www.unswlawjournal.unsw.edu.au/sites/default/files/hamer_371.pdf

 

[Tim W]

Error of law? I don't see one in what you have said above.

It is almost always the case that the "new" evidence
would need to be fresh and compelling, and
to have not been available (even if not adduced)
at the time of the original trial, and
bring into question the safety of the conviction.