Gibson v The Queen - [2001] TASSC 59

[2001] TASSC 59

CITATION: Gibson v R [2001] TASSC 59

PARTIES:  GIBSON, Michael John
  v
  R

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 80/2000
DELIVERED ON:  25 May 2001
DELIVERED AT:  Hobart
HEARING DATES:  5 March 2001
JUDGMENT OF:  Underwood, Slicer and Evans JJ

CATCHWORDS:

Criminal Law - Evidence - Evidentiary matters relating to witnesses and accused persons - Identification evidence - Circumstantial evidence - DNA profiling.

Pantoja v R (1996) 88 A Crim R 554, considered.
Jeffrey v R [1991] Tas R 336, referred to.
Aust Dig Criminal Law [611].

REPRESENTATION:

Counsel:
             Appellant:  In person
             Respondent:  A R Jacobs
Solicitors:
             Appellant:  In person
             Respondent:  Director of Public Prosecutions

Judgment Number: [2001] TASSC 59
Number of Paragraphs: 63

Serial No 59/2001
File No CCA 80/2000

MICHAEL JOHN GIBSON v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

UNDERWOOD J
SLICER J
EVANS J
25 May 2001

Order of the Court

Appeal dismissed.

Serial No 59/2001
File No CCA 80/2000

MICHAEL JOHN GIBSON v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

UNDERWOOD J
25 May 2001

The appellant was found guilty of the crimes of aggravated assault, rape, indecent assault and aggravated sexual assault. He was convicted and sentenced to six years' imprisonment. He has appealed against those convictions.

The Crown case was that at about midnight, or shortly afterwards, on 25 April 1999, the complainant was walking up Henry Street in Launceston. She was then aged 15 years. She had been in town with friends. She met a man who was a stranger to her, walking in the opposite direction. She asked him if Ravenswood was the same as Waverley and he told her it was not and that she needed to go in the opposite direction. He said that he would walk with her. As they were walking along together, the man suddenly hit the complainant in the stomach and winded her. He then dragged her to a bank on the side of the road and sexually assaulted her. It is unnecessary to set out the details of the assault. It suffices to say that he committed the crimes charged in the indictment, one of which was rape by penetration of the complainant's mouth. The complainant's evidence was that this man ejaculated in her mouth. Shortly after this, the man let the complainant go. She ran to a nearby house and raised one of the occupants. The police attended.

The complainant gave the jury a description of her attacker. She said that he was aged "about 40 odd", with medium length, brown, curly hair. She said that he had a goatee beard and a moustache. She described his build and height as medium. The complainant said he had small, light coloured eyes. She also gave a brief description of the clothes that her attacker was wearing that night.

The appellant, who represented himself at the trial and on the appeal, did not challenge the evidence of the complainant. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gibson v The Queen

Details

AGLC: Gibson v The Queen [2001] TASSC 59
Case: [2001] TASSC 59
Decision Date: 25 May 2001

CaseChat Overview and Summary

Gibson was convicted of aggravated assault, rape, indecent assault and aggravated sexual assault. Gibson appealed against his convictions, arguing that the trial judge erred in his directions to the jury concerning the DNA evidence, that he was denied the opportunity to produce evidence to dispute witness testimony, and that he was not properly instructed about the dangers of identification evidence. The Court of Criminal Appeal dismissed the appeal. The Court found that there was no error in the trial judge's directions to the jury concerning the DNA evidence, and that Gibson had not been denied the opportunity to produce evidence to dispute witness testimony. The Court also found that the trial judge had properly instructed the jury about the dangers of identification evidence.

Orders