R v Awang - [2004] QCA 152

SUPREME COURT OF QUEENSLAND

CITATION:

R v Awang [2004] QCA 152

PARTIES:

R
v
AWANG, Samuel Daniel
(appellant)

FILE NO/S:

CA No 394 of 2003
DC No 124 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Toowoomba

DELIVERED ON:

14 May 2004

DELIVERED AT:

Brisbane

HEARING DATE:

21 April 2004

JUDGES:

McMurdo P and McPherson and Williams JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – where appellant convicted of deprivation of liberty but acquitted on assault with intent to commit rape and sexual assault – where complainant extremely intoxicated at time of offence – where there was evidence from other witnesses about the deprivation of liberty offence but not about the other offences charged – where learned trial judge directed jury that they may wish to only act on complainant’s evidence where it was supported – whether verdicts inconsistent – whether verdict on deprivation of liberty unreasonable

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 complainant indicated in cross-examination that she had not considered that it was possible for her to get criminal compensation as a result of the offence – where it emerged after conviction that complainant had consulted solicitors regarding compensation – where appellant’s solicitors could not by exercise of reasonable diligence have become aware of this evidence before verdict – whether jury would have arrived at a different result if additional evidence had been before it

Criminal Code 1899 (Qld), s 355

Go v The Queen (1990) 102 FLR 299, cited
Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44, cited
R v Armstrong [2001] QCA 559; CA No 208 of 2001, 7 December 2001, distinguished
R v Inwood [1973] 1 WLR 647, considered
Reppas v The Queen (1998) 20 WAR 178, considered

COUNSEL:

P J Callaghan for the appellant
M J Copley for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

McMURDO P: I agree with Williams JA that the appeal should be dismissed for the reasons he gives. I only wish to add the following brief observations.

The offence of deprivation of liberty under s 355 Criminal Code is based on the common law crime of false imprisonment. The essence of the offence is the deprivation of liberty of the complainant. The phrase "or otherwise" in s 355 recognises, as the common law recognised, that people may be deprived of their liberty not only against their will but also where the deprivation is achieved by fraud,…

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 Awang

Details

AGLC: R v Awang [2004] QCA 152
Case: [2004] QCA 152
Decision Date: 14 May 2004

CaseChat Overview and Summary

The appeal against the conviction of Awang in the case of R v Awang was dismissed by the court. The appellant was found guilty of deprivation of liberty but was acquitted on the charges of assault with intent to commit rape and sexual assault. The complainant was extremely intoxicated at the time of the offence. Other witnesses provided evidence regarding the deprivation of liberty offence, but there was no evidence from other witnesses about the other offences charged. The trial judge directed the jury that they may wish to only act on the complainant’s evidence if it was supported. The appeal was based on the grounds of an unreasonable or insupportable verdict, and the fresh evidence that emerged after the conviction that the complainant had consulted solicitors regarding compensation.

The court considered whether the verdicts were inconsistent and whether the verdict on deprivation of liberty was unreasonable. The court held that the verdicts were not inconsistent and that the verdict on deprivation of liberty was reasonable. The court noted that the complainant’s evidence was the only evidence that directly related to the offences of assault with intent to commit rape and sexual assault, and that the jury was entitled to act on her evidence if they found it credible. The court also held that the fresh evidence about the complainant’s consultation with solicitors regarding compensation was not material or cogent enough to warrant a new trial. The court held that the appellant’s solicitors could not have become aware of this evidence before the verdict by exercising reasonable diligence, and that it was unlikely that the jury would have arrived at a different result if this evidence had been before it.

The appeal was dismissed, and the conviction and sentence of the appellant were upheld. The court held that the evidence was sufficient to support the conviction for deprivation of liberty, and that the verdict on the other charges was not unreasonable or insupportable. The court also held that the fresh evidence about the complainant’s consultation with solicitors regarding compensation did not warrant a new trial. The orders of the court were that the appeal be dismissed, and that the conviction and sentence of the appellant be upheld.

Orders

Orders of the court

Appeal 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 Awang [2004] QCA 152
PARTIES:	R v AWANG, Samuel Daniel (appellant)
FILE NO/S:	CA No 394 of 2003 DC No 124 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Toowoomba
DELIVERED ON:	14 May 2004
DELIVERED AT:	Brisbane
HEARING DATE:	21 April 2004
JUDGES:	McMurdo P and McPherson and Williams JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – where appellant convicted of deprivation of liberty but acquitted on assault with intent to commit rape and sexual assault – where complainant extremely intoxicated at time of offence – where there was evidence from other witnesses about the deprivation of liberty offence but not about the other offences charged – where learned trial judge directed jury that they may wish to only act on complainant’s evidence where it was supported – whether verdicts inconsistent – whether verdict on deprivation of liberty unreasonable 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 complainant indicated in cross-examination that she had not considered that it was possible for her to get criminal compensation as a result of the offence – where it emerged after conviction that complainant had consulted solicitors regarding compensation – where appellant’s solicitors could not by exercise of reasonable diligence have become aware of this evidence before verdict – whether jury would have arrived at a different result if additional evidence had been before it Criminal Code 1899 (Qld), s 355 Go v The Queen (1990) 102 FLR 299, cited Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44, cited R v Armstrong [2001] QCA 559; CA No 208 of 2001, 7 December 2001, distinguished R v Inwood [1973] 1 WLR 647, considered Reppas v The Queen (1998) 20 WAR 178, considered
COUNSEL:	P J Callaghan for the appellant M J Copley for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent