R v Barrett - [2015] QCA 81

SUPREME COURT OF QUEENSLAND

CITATION:

R v Barrett [2015] QCA 81

PARTIES:

R
v
BARRETT also known as DUNROBIN, Shannon Robert
(appellant)

FILE NO/S:

CA No 222 of 2014
DC No 1185 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Bundaberg – Unreported, 11 August 2014

DELIVERED ON:

12 May 2015

DELIVERED AT:

Brisbane

HEARING DATE:

6 March 2015

JUDGES:

Gotterson and Morrison JJA and Peter Lyons J
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 – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted in the District Court of one count of rape – where the appellant was acquitted of the four other counts on the indictment – where the complainant was a young male – where the appellant was sentenced to four and a half years’ imprisonment – where the trial judge directed the jury that “Count 1, the first one, was the strongest case…” – where defence counsel addressed on Count 1 in much more detail than the other counts – whether the trial judge erred when her Honour imputed to defence counsel a concession that Count 1 was the “strongest” of the counts on the indictment

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the complainant gave evidence of many uncharged acts – where the learned trial judge in summing-up detailed the particulars of each of the five counts and provided a relatively brief outline of other aspects of the evidence of the uncharged acts – where defence counsel did not specifically ask for a Markuleski direction – where the learned trial judge directed the jury as to a “domino effect on credibility” – whether the learned trial judge erred, or a miscarriage of justice was occasioned, by the failure of the trial judge to direct the jury in the terms of R v Markuleski

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where in the course of addresses, the prosecutor put to the jury that the appellant’s denial that any sexual activity took place between him and the complainant at the Boundary Street address was a falsehood – where the prosecutor did not suggest that lying by the appellant could be used by the jury as evidence of a consciousness of guilt on his part – where the learned trial judge directed the jury that if they rejected what the appellant said in his record of interview, they should put it to one side and ought not reason automatically from the rejection that he was guilty – where no further direction was given on lies – whether the trial judge erred, or a miscarriage…

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 Barrett

Details

AGLC: R v Barrett [2015] QCA 81
Case: [2015] QCA 81
Decision Date: 12 May 2015

CaseChat Overview and Summary

In the case of R v Barrett, the appellant was convicted in the District Court of one count of rape and acquitted on four other counts. The appellant was sentenced to four and a half years’ imprisonment. The primary issues in the appeal were whether the trial judge’s directions to the jury constituted a misdirection or non-direction, leading to a miscarriage of justice. Specifically, the appellant argued that the trial judge erred by imputing a concession to defence counsel that Count 1 was the strongest count, failing to give a Markuleski direction, not directing the jury about alleged lies by the appellant, and not leaving an alternative charge of unlawful sodomy for the jury’s consideration.

The court examined the trial judge’s direction that Count 1 was the strongest case, noting that the defence counsel had focused their arguments on this count. The court found that the trial judge did not err in this regard as it was an appropriate comment given the circumstances. Regarding the Markuleski direction, the court held that no error occurred because defence counsel did not specifically request such a direction, and the trial judge adequately addressed the uncharged acts in their summing-up. As for the alleged lies, the court observed that the trial judge had given appropriate directions on the rejection of the appellant’s interview statement, and no further direction on lies was necessary. Finally, the court determined that there was no error in the trial judge’s failure to leave the alternative charge of unlawful sodomy, as the evidence did not support such a charge.

The appeal was ultimately dismissed by the court. The jury’s verdict was found to be reasonable, and the court found no miscarriage of justice in the trial judge’s handling of the case. The court’s detailed examination of each issue raised in the appeal led to the conclusion that the trial had been conducted fairly and the jury’s decision was supported by the evidence. Consequently, the conviction and sentence were 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 Barrett [2015] QCA 81
PARTIES:	R v BARRETT also known as DUNROBIN, Shannon Robert (appellant)
FILE NO/S:	CA No 222 of 2014 DC No 1185 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Bundaberg – Unreported, 11 August 2014
DELIVERED ON:	12 May 2015
DELIVERED AT:	Brisbane
HEARING DATE:	6 March 2015
JUDGES:	Gotterson and Morrison JJA and Peter Lyons J 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 – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted in the District Court of one count of rape – where the appellant was acquitted of the four other counts on the indictment – where the complainant was a young male – where the appellant was sentenced to four and a half years’ imprisonment – where the trial judge directed the jury that “Count 1, the first one, was the strongest case…” – where defence counsel addressed on Count 1 in much more detail than the other counts – whether the trial judge erred when her Honour imputed to defence counsel a concession that Count 1 was the “strongest” of the counts on the indictment CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the complainant gave evidence of many uncharged acts – where the learned trial judge in summing-up detailed the particulars of each of the five counts and provided a relatively brief outline of other aspects of the evidence of the uncharged acts – where defence counsel did not specifically ask for a Markuleski direction – where the learned trial judge directed the jury as to a “domino effect on credibility” – whether the learned trial judge erred, or a miscarriage of justice was occasioned, by the failure of the trial judge to direct the jury in the terms of R v Markuleski CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where in the course of addresses, the prosecutor put to the jury that the appellant’s denial that any sexual activity took place between him and the complainant at the Boundary Street address was a falsehood – where the prosecutor did not suggest that lying by the appellant could be used by the jury as evidence of a consciousness of guilt on his part – where the learned trial judge directed the jury that if they rejected what the appellant said in his record of interview, they should put it to one side and ought not reason automatically from the rejection that he was guilty – where no further direction was given on lies – whether the trial judge erred, or a miscarriage…