R v Bastos de Freitas

Case [2013] QCA 164

SUPREME COURT OF QUEENSLAND

CITATION:

R v Bastos de Freitas [2013] QCA 164

PARTIES:

R
v
BASTOS DE FREITAS, Daniel
(appellant/applicant)

FILE NO/S:

CA No 344 of 2012
CA No 79 of 2013
DC No 49 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

24 June 2013

DELIVERED AT:

Brisbane

HEARING DATE:

17 June 2013

JUDGES:

Muir and Gotterson JJA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.      The appeal against conviction be dismissed.

2.      Leave to appeal against sentence be granted.

3.      The sentences imposed on 13 March 2013 be varied but only by substituting a sentence of two years and six months imprisonment for the sentence of four years imposed in respect of count 1.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO A MISCARRIAGE OF JUSTICE – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted, after a trial, of one count of common assault and two counts of rape and pleaded guilty to one count of assault occasioning bodily harm – where, after meeting at a nightclub, the appellant and the complainant went to the beach to engage in sexual intercourse – where the appellant accused the complainant of stealing his wallet – where the appellant repeatedly struck the complainant and threatened to kill her – where the complainant alleged that the appellant subsequently raped her – where the appellant alleged that the sexual intercourse was consensual – where it was not disputed that the appellant apologised to the complainant – where the prosecution argued that the appellant was apologising for the physical assault and the offences of rape – where the defence argued that the appellant was apologising for the physical assault to which the appellant had pleaded guilty – where the primary judge reminded the jury that there were competing arguments in respect of the significance of the apology – where the appellant submits that the direction was inadequate and had the capacity to be decisive of the outcome of the trial – where direction was foreshadowed by the trial judge and accepted as appropriate by both counsel – whether the direction as to the apology constituted a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO A MISCARRIAGE OF JUSTICE – MISDIRECTION OR NON-DIRECTION – where the prosecutor drew attention to differences between factual matters put to the complainant and evidence given by the appellant in respect of such matters – where the appellant submits that the trial judge erred in failing to direct the jury that, before they could draw an adverse inference against the appellant, they had to be satisfied there was no reasonable explanation for the differences – where the appellant submits that the trial judge erred when he told the jury to…

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AGLC
R v Bastos de Freitas [2013] QCA 164
Case
[2013] QCA 164
Decision Date

CaseChat Overview and Summary

The appellant was convicted of one count of common assault and two counts of rape, and pleaded guilty to one count of assault occasioning bodily harm. The appellant appealed his convictions and sentences, arguing that the trial was a miscarriage of justice due to a series of errors made by the trial judge. The primary judge had reminded the jury that there were competing arguments in respect of the significance of the appellant's apology to the complainant, and the appellant submitted that the direction was inadequate and had the capacity to be decisive of the outcome of the trial. The appellant also argued that the trial judge erred in failing to direct the jury that, before they could draw an adverse inference against him, they had to be satisfied there was no reasonable explanation for the differences between factual matters put to the complainant and the evidence given by the appellant. Additionally, the appellant argued that the trial judge erred in allowing the prosecutor to cross-examine him and address the jury on the failure to allow the possibility that he may have put his wallet in his shoes.

The court found that the direction to the jury as to the significance of the appellant's apology did not amount to a miscarriage of justice, as the direction was foreshadowed by the trial judge and accepted as appropriate by both counsel. The court also found that the trial judge did not err in failing to direct the jury that, before they could draw an adverse inference against the appellant, they had to be satisfied there was no reasonable explanation for the differences between factual matters put to the complainant and the evidence given by the appellant. The court held that the inconsistencies and their role in the jury's evaluation of the evidence were peripheral. Finally, the court found that the trial judge did not err in allowing the prosecutor to cross-examine the appellant and address the jury on the failure to allow the possibility that the appellant may have put his wallet in his shoes.

The court found that the sentence imposed on the appellant in respect of count 1 was manifestly excessive. The court held that the sentence imposed for count 1 should be varied by substituting a sentence of two years and six months imprisonment for the sentence of four years imposed. The court granted leave to appeal against the sentence and varied the sentences imposed on 13 March 2013 by substituting a sentence of two years and six months imprisonment for the sentence of four years imposed in respect of count 1. The court dismissed the appeal against conviction.

Orders

Orders of the court

1. The appeal against conviction be dismissed.

2. Leave to appeal against sentence be granted.

3. The sentences imposed on 13 March 2013 be varied but only by substituting a sentence of two years and six months imprisonment for the sentence of four years imposed in respect of count 1.

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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