R v AK - [2003] QCA 80

SUPREME COURT OF QUEENSLAND

CITATION:

R v AK [2003] QCA 80

PARTIES:

R
v
AK
(appellant)

FILE NO/S:

CA No 6 of 2002
DC No 452 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

7 March 2003

DELIVERED AT:

Brisbane

HEARING DATE:

7 February 2003; 10 February 2003

JUDGES:

Davies and Williams JJA and Cullinane J
Separate reasons for judgment of each member of the Court; each concurring as to the orders made

ORDERS:

1. Grant leave to amend the notice of appeal by adding the following grounds:

(a) “That the learned trial judge erred in directing the jury that S’s evidence could amount to relationship evidence which supported all three counts.”

(b) “There should be a re-trial because fresh evidence which could not have been obtained by the appellant by the exercise of reasonable care and diligence before the trial is now available and there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial.”

2. Appeal against conviction dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – FRESH EVIDENCE – AVAILABILITY AT TRIAL; MATERIALITY AND COGENCY – PARTICULAR CASES – MATERIALITY AND COGENCY – EVIDENCE DIRECTED TO CREDIT – where appellant convicted of rape – where complainant’s sister gave evidence at trial – where fresh evidence arose as to veracity of complainant’s sister’s evidence – whether a reasonable jury would have acquitted appellant if the fresh evidence had been before it at trial

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – OTHER OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – RAPE AND SEXUAL ASSAULT – PROOF AND EVIDENCE – where direction given to jury by trial judge that complainant’s sister’s evidence could amount to relationship evidence – whether this was a misdirection – whether jury was entitled to view this evidence as corroborative to that of complainant

Gallagher v The Queen (1986) 160 CLR 392, followed
Green v The King (1939) 61 CLR 167, considered
Lawless v The Queen (1979) 142 CLR 569, considered
Mickelberg v The Queen (1989) 167 CLR 259, followed
R v Kerim [1988] 1 QdR 426, followed
R v M [1995] 1 QdR 213, followed
Ratten v The Queen (1974) 131 CLR 510, considered

COUNSEL:

J L Hutton for the appellant
M J Copley for the respondent

SOLICITORS:

Rostron Carlyle for the appellant
Director of Public Prosecutions (Queensland) for the respondent

DAVIES JA: I agree with the reasons for judgment of Williams JA and with the orders he proposes.

WILLIAMS JA: On 15 December 2001 the Jury convicted the appellant of two counts of rape and one count of indecent dealing. The complainant (L) was the same person in each case, and, it was alleged that each of the offences occurred between 1 January 1983 and 1 December 1985.…

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 R v AK

Details

AGLC: R v AK [2003] QCA 80
Case: [2003] QCA 80
Decision Date: 7 March 2003

CaseChat Overview and Summary

The appellant, referred to as AK, was convicted of rape and appealed against his conviction to the Court of Appeal. The primary issue in this appeal was whether the trial judge had erred in directing the jury that the complainant’s sister’s evidence could be considered as relationship evidence, which supported all three counts of the offence. Furthermore, the appeal sought to introduce fresh evidence that was not available at the time of the trial and to argue that there was a significant possibility that a jury, acting reasonably, would have acquitted AK had this fresh evidence been before them.

The Court of Appeal examined whether the trial judge’s direction to the jury that the complainant’s sister’s evidence could amount to relationship evidence was erroneous. It was determined that the direction was not a misdirection and that the jury was entitled to consider this evidence in the context of corroborating the complainant’s testimony. The Court further assessed the availability and materiality of the fresh evidence presented. It found that while the fresh evidence could not have been obtained by the appellant through reasonable care and diligence, it was not of such cogency that it would likely lead a reasonable jury to acquit the appellant. Consequently, the appeal against the conviction was dismissed, but the Court granted leave to amend the notice of appeal to include the grounds related to the trial judge's direction and the availability of fresh evidence.

In conclusion, the Court of Appeal dismissed the appeal against the conviction but allowed the amendment to the notice of appeal. This decision reflects the Court's assessment of both the trial judge’s direction to the jury and the potential impact of the fresh evidence on the outcome of the trial.

Orders

Orders of the court

1. Grant leave to amend the notice of appeal by adding the following grounds:

(a) “That the learned trial judge erred in directing the jury that S’s evidence could amount to relationship evidence which supported all three counts.”

(b) “There should be a re-trial because fresh evidence which could not have been obtained by the appellant by the exercise of reasonable care and diligence before the trial is now available and there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial.”

2. Appeal against conviction dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v AK [2003] QCA 80
PARTIES:	R v AK (appellant)
FILE NO/S:	CA No 6 of 2002 DC No 452 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	7 March 2003
DELIVERED AT:	Brisbane
HEARING DATE:	7 February 2003; 10 February 2003
JUDGES:	Davies and Williams JJA and Cullinane J Separate reasons for judgment of each member of the Court; each concurring as to the orders made
ORDERS:	1. Grant leave to amend the notice of appeal by adding the following grounds: (a) “That the learned trial judge erred in directing the jury that S’s evidence could amount to relationship evidence which supported all three counts.” (b) “There should be a re-trial because fresh evidence which could not have been obtained by the appellant by the exercise of reasonable care and diligence before the trial is now available and there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial.” 2. Appeal against conviction dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – FRESH EVIDENCE – AVAILABILITY AT TRIAL; MATERIALITY AND COGENCY – PARTICULAR CASES – MATERIALITY AND COGENCY – EVIDENCE DIRECTED TO CREDIT – where appellant convicted of rape – where complainant’s sister gave evidence at trial – where fresh evidence arose as to veracity of complainant’s sister’s evidence – whether a reasonable jury would have acquitted appellant if the fresh evidence had been before it at trial CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – OTHER OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – RAPE AND SEXUAL ASSAULT – PROOF AND EVIDENCE – where direction given to jury by trial judge that complainant’s sister’s evidence could amount to relationship evidence – whether this was a misdirection – whether jury was entitled to view this evidence as corroborative to that of complainant Gallagher v The Queen (1986) 160 CLR 392, followed Green v The King (1939) 61 CLR 167, considered Lawless v The Queen (1979) 142 CLR 569, considered Mickelberg v The Queen (1989) 167 CLR 259, followed R v Kerim [1988] 1 QdR 426, followed R v M [1995] 1 QdR 213, followed Ratten v The Queen (1974) 131 CLR 510, considered
COUNSEL:	J L Hutton for the appellant M J Copley for the respondent
SOLICITORS:	Rostron Carlyle for the appellant Director of Public Prosecutions (Queensland) for the respondent