R v. Cannell - [2009] QCA 94

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cannell [2009] QCA 94

PARTIES:

R
v
CANNELL, Peter Tasman
(appellant)

FILE NO/S:

CA No 290 of 2008
CA No 59 of 2009
DC No 1627 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction
Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

21 April 2009

DELIVERED AT:

Brisbane

HEARING DATE:

7 April 2009

JUDGES:

McMurdo P, Fraser JA and Applegarth J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDERS:

Appeal against conviction allowed; the verdict of guilty is set aside and a retrial is ordered1.

The application for an extension of time to apply for leave to appeal against sentence is struck out2.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – MISDIRECTION OR NON-DIRECTION –appellant pleaded not guilty to rape and guilty to assault occasioning bodily harm – judge's direction to the jury forward focused on the complainant's cognitive capacity to give consent – prosecution's case was that the appellant assaulted the complainant forcing her to submit to sexual intercourse – whether the trial judge erred in directions to the jury which enabled them to return a verdict of guilty of rape which was not based on the prosecution's case

Criminal Code 1899 (Qld), s 348, s 668E(1)

Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34, cited
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited
R v SAX [2006] QCA 397, cited
Stevens v The Queen (2005) 227 CLR 319; HCA 65, cited

COUNSEL:

S Ryan for the appellant
P F Rutledge for the respondent

SOLICITORS:

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

McMURDO P: The appellant, Peter Tasman Cannell, was charged with one count of rape and one count of assault occasioning bodily harm. Both charges concerned the same complainant and were charged as occurring at Caboolture on or about 6 April 2007. The appellant was arraigned in the presence of the jury on 3 November 2008. He pleaded not guilty to rape but guilty to assault occasioning bodily harm. He was convicted of rape after a four day trial. He was sentenced to eight years imprisonment for rape and to a concurrent term of three years imprisonment for assault occasioning bodily harm. The appellant appeals against his conviction of rape and seeks an extension of time to apply for leave to appeal against his sentence.

The evidence at trial

Before turning to the grounds of appeal against conviction, it is useful to summarise the relevant evidence at trial. The prosecution case was that the appellant had sex with the complainant against her will in unit 4, 40 Edward Street, Caboolture, late on 5 April or early on 6 April 2007. The defence case put to the complainant in cross-examination was that the appellant and the…

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. Cannell

Details

AGLC: R v Cannell [2009] QCA 94
Case: [2009] QCA 94
Decision Date: 21 April 2009

CaseChat Overview and Summary

The appellant, in this case, contested his conviction and sentence in the High Court of Australia. The matter arose from his trial in a lower court where he was found guilty of rape and assault occasioning bodily harm. The appellant, Cannell, was initially charged with rape, however, he pleaded not guilty to this charge and guilty to the lesser charge of assault occasioning bodily harm. The trial judge directed the jury to consider the complainant’s cognitive capacity to give consent, which was forward-focused, as opposed to the prosecution’s case which centred on the appellant forcing the complainant to submit to sexual intercourse. The appellant contended that the judge’s direction to the jury misdirected them, enabling them to return a verdict of guilty of rape, which was not based on the prosecution’s case.

The central issue before the court was whether the trial judge erred in directing the jury in a manner that allowed them to convict the appellant of rape, a charge he did not plead guilty to, based on a theory not presented by the prosecution. The appellant argued that the judge’s direction permitted a conviction for rape that was not in accordance with the prosecution’s case, thus resulting in a miscarriage of justice. The court had to determine if the judge’s direction constituted a misdirection or non-direction that was significant enough to warrant a new trial.

The High Court found that the trial judge's direction to the jury was indeed a misdirection, as it allowed the jury to convict the appellant of rape based on a theory not presented by the prosecution. The court held that the misdirection was significant and affected the outcome of the trial, leading to a miscarriage of justice. Consequently, the court allowed the appeal against the conviction, set aside the verdict of guilty, and ordered a retrial. The court also struck out the application for an extension of time to apply for leave to appeal against the sentence.

Orders

Orders of the court

Appeal against conviction allowed; the verdict of guilty is set aside and a retrial is ordered1.

The application for an extension of time to apply for leave to appeal against sentence is struck out2.

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 Cannell [2009] QCA 94
PARTIES:	R v CANNELL, Peter Tasman (appellant)
FILE NO/S:	CA No 290 of 2008 CA No 59 of 2009 DC No 1627 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction Application for Extension (Sentence)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	21 April 2009
DELIVERED AT:	Brisbane
HEARING DATE:	7 April 2009
JUDGES:	McMurdo P, Fraser JA and Applegarth J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDERS:	Appeal against conviction allowed; the verdict of guilty is set aside and a retrial is ordered1. The application for an extension of time to apply for leave to appeal against sentence is struck out2.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – MISDIRECTION OR NON-DIRECTION –appellant pleaded not guilty to rape and guilty to assault occasioning bodily harm – judge's direction to the jury forward focused on the complainant's cognitive capacity to give consent – prosecution's case was that the appellant assaulted the complainant forcing her to submit to sexual intercourse – whether the trial judge erred in directions to the jury which enabled them to return a verdict of guilty of rape which was not based on the prosecution's case Criminal Code 1899 (Qld), s 348, s 668E(1) Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34, cited MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited R v SAX [2006] QCA 397, cited Stevens v The Queen (2005) 227 CLR 319; HCA 65, cited
COUNSEL:	S Ryan for the appellant P F Rutledge for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent