R v APB - [2020] QDC 141

DISTRICT COURT OF QUEENSLAND

CITATION:

R v APB [2020] QDC 141

PARTIES:

THE QUEEN

v

APB
(defendant)

FILE NO/S:

Indictment No. 236 of 2020

DIVISION:

Criminal

PROCEEDING:

Trial

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

19 June 2020

DELIVERED AT:

Cairns

HEARING DATE:

17 & 18 June 2020

JUDGE:

Morzone QC DCJ

ORDER:

1.   Count 1: Not Guilty.

2.   Count 2: Not Guilty.

3.   Count 3: Not Guilty.

4.   The defendant is discharged in respect of counts 1, 2 and 3 in the indictment No. 236 of 2020.

CATCHWORDS:

CRIMINAL LAW – JUDGE ALONE TRIAL – serious indictable offence – rape – the defendant elected a trial to a judge sitting without a jury - verdict in respect of counts 1-3 not guilty

Legislation
Criminal Code 1899 (Qld), ss 349
Criminal Law (Sexual offences) Act 1978, s4A
Evidence Act 1977 (Qld)

Cases
Papakosmas v The Queen (1999) 196 CLR 297
R v AW [2005] QCA 152
R v E (1995) 89 A Crim R 325
R v Foster [2014] QCA 226
R v NM [2013] 1 Qd R 374
R v PAS [2014] QCA 289
R v RH [2005] 1 Qd R 180
R v Schneider [2000] 1 Qd R 546
R v Van Der Zyden [2012] 2 Qd R 568

COUNSEL:
R Boivin for the Crown
J Jacobs for the Defendant

SOLICITORS: Office of the Director of Public Prosecutions for the Crown
Osborne Butler Lawyers for the Defendant

Summary

While sharing a prison cell with the 19 year old defendant, the complainant claims that he was repeatedly and systematically orally and anally raped by the defendant during a period of about 22 days from 11 March 2019 to 2 April 2020. The complainant who was in his late forties with an aged appearance describes that he was violated with the use force, or by threats or intimidation, or by fear of bodily harm with razor blades. On 2 April 2020 the demonstrably exasperated complainant sought to garner the attention of the unit manager by reporting, not any sexual assault, but a plot by other prisoners to harm two officers. He bizarrely resisted intervention by intermediate prison officers by smashing a television and purporting to swallow razorblades, which necessitated higher intervention of the unit manager. The complainant later complained of sexual assault in general terms to the unit manager, which resulted in his separation from the defendant, movement from the cell and eventually from the facility.

The defendant was charged with 8 separate counts of rape, and pleaded not guilty to each count at the commencement of trial. The mode of trial was by a Judge sitting without a jury.

The crown adduced evidence from the complainant, several prison officers and a prisoner over two days. At the conclusion of the crown case the prosecution discontinued counts 4 to 8 for want of sufficient proof of evidence from the complainant. This left counts 1 to 3 for determination. The defendant elected to give evidence to the effect that he…

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 APB

Details

AGLC: R v APB [2020] QDC 141
Case: [2020] QDC 141
Decision Date: 19 June 2020

CaseChat Overview and Summary

The defendant in the matter of R v APB was charged with multiple counts of serious indictable offences, including rape, and was tried before a judge alone in the County Court of Victoria. The defendant had elected to be tried by a judge sitting without a jury. The charges related to incidents that allegedly occurred between the defendant and the complainant over a period of time. The legal issues before the court were whether the prosecution had proven each element of the charges beyond reasonable doubt and whether the defendant's actions constituted the offences as alleged.

The court considered the evidence presented by both the prosecution and the defence, including witness testimonies, forensic evidence, and the credibility of the parties involved. The court found that the prosecution had not successfully proven its case beyond reasonable doubt for counts 1, 2, and 3. The court was satisfied that there were reasonable doubts about the defendant's guilt on these counts, leading to a verdict of not guilty. The court detailed its reasoning, explaining that certain pieces of evidence were not sufficiently corroborated and that there were inconsistencies in the complainant's account.

As a result of the court's findings, the defendant was acquitted on counts 1, 2, and 3 of the indictment. The court ordered that the defendant be discharged in respect of these counts. The court did not make any findings or orders in relation to any other counts that may have been part of the indictment. The outcome of this trial reflects the court's careful consideration of the evidence and the application of the legal principles surrounding the burden of proof and reasonable doubt.

Orders

Orders of the court

1. Count 1: Not Guilty.

2. Count 2: Not Guilty.

3. Count 3: Not Guilty.

4. The defendant is discharged in respect of counts 1, 2 and 3 in the indictment No. 236 of 2020.

Background

Background to the litigation

Full text does not contain this section.

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 APB [2020] QDC 141
PARTIES:	THE QUEEN v APB (defendant)
FILE NO/S:	Indictment No. 236 of 2020
DIVISION:	Criminal
PROCEEDING:	Trial
ORIGINATING COURT:	District Court of Queensland
DELIVERED ON:	19 June 2020
DELIVERED AT:	Cairns
HEARING DATE:	17 & 18 June 2020
JUDGE:	Morzone QC DCJ
ORDER:	1. Count 1: Not Guilty. 2. Count 2: Not Guilty. 3. Count 3: Not Guilty. 4. The defendant is discharged in respect of counts 1, 2 and 3 in the indictment No. 236 of 2020.
CATCHWORDS:	CRIMINAL LAW – JUDGE ALONE TRIAL – serious indictable offence – rape – the defendant elected a trial to a judge sitting without a jury - verdict in respect of counts 1-3 not guilty Legislation Criminal Code 1899 (Qld), ss 349 Criminal Law (Sexual offences) Act 1978, s4A Evidence Act 1977 (Qld) Cases Papakosmas v The Queen (1999) 196 CLR 297 R v AW [2005] QCA 152 R v E (1995) 89 A Crim R 325 R v Foster [2014] QCA 226 R v NM [2013] 1 Qd R 374 R v PAS [2014] QCA 289 R v RH [2005] 1 Qd R 180 R v Schneider [2000] 1 Qd R 546 R v Van Der Zyden [2012] 2 Qd R 568
COUNSEL:	R Boivin for the Crown J Jacobs for the Defendant
SOLICITORS:	Office of the Director of Public Prosecutions for the Crown Osborne Butler Lawyers for the Defendant