R v Cannell (No 2)

[2009] QCA 97

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cannell (No 2) [2009] QCA 97

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:

24 April 2009

DELIVERED AT:

Brisbane

HEARING DATE:

7 April 2009

JUDGES:

McMurdo P, Fraser JA and Applegarth J
Judgment of the Court

ORDERS:

The orders made by this Court on 21 April 2009 are set aside and instead order:

1. The appeal against conviction on count 1, rape, is allowed; the verdict of guilty set aside and a re-trial ordered.

2.The application for an extension of time to apply for leave to appeal against sentence in respect of count 2, assault occasioning bodily harm, is granted and time is extended until 18 March 2009. 

3.The application for leave to appeal against the sentence imposed on count 2, assault occasioning bodily harm is granted, and the appeal allowed. 

4.The sentence imposed in respect of count 2, assault occasioning bodily harm, is set aside and the question of the appellant's sentence on the offence of assault occasioning bodily harm is remitted to the District Court at Brisbane for determination at the completion of any re-trial in respect of count 1, the offence of rape. 

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 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

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

1. THE COURT: Since the orders and reasons in this matter were delivered on 21 April 2009, it has been brought to the Court's attention that the appellant's application for an extension of time for leave to appeal against sentence was not in respect of the offence of rape to which the appeal against conviction related.  It was in respect of the offence of assault occasioning bodily harm to which the appellant pleaded guilty before the jury at the commencement of the rape trial.

1. The appellant was sentenced to three years imprisonment for the offence of assault occasioning bodily harm which was concurrent with the term of eight years imprisonment imposed for the offence of rape.  His conviction for rape (and therefore the eight year sentence pertaining to it) was set aside by this Court on 21 April 2009. 

1. The reason for the appellant's delay in pursuing his application for leave to appeal against sentence seems to have arisen from a misunderstanding by the appellant and his legal representative as for the need to do so. 

1. Counsel for the respondent concedes that, as the appeal against conviction on the rape count has been allowed, the application for an extension of time to appeal against sentence on the assault occasioning bodily harm count should also be granted and the sentence set aside. 

1. That concession is rightly made.  The sentence on the count of assault occasioning bodily harm was imposed on the basis that the assault was committed in circumstances closely associated with the serious offence of rape of the same complainant.  The appellant's conviction on the rape offence has been set aside and a re-trial ordered.  If the applicant is acquitted of the offence of rape, there is a prospect that the sentencing judge may not take as serious a view of the offence of assault occasioning bodily harm as did the original sentencing judge.  The interests of justice support the granting of the application for an extension of time.  The application for an extension of time should be granted, the sentence imposed for the offence of assault occasioning bodily harm set aside and the sentence remitted to the District Court for determination after the outcome of the re-trial on the offence of rape.

ORDERS

The orders made by this Court on 21 April 2009 are set aside and instead order:

1.        The appeal against conviction on count 1, rape, is allowed; the verdict of           guilty set aside and a re-trial ordered.

2.        The application for an extension of time to apply for leave to appeal against       sentence in respect of count 2, assault occasioning bodily harm, is granted and time is extended until 18 March 2009.

3.        The application for leave to appeal against the sentence imposed on

           

count 2, assault occasioning bodily harm is granted, and the appeal allowed.

4.        The sentence imposed in respect of count 2, assault occasioning bodily harm, is set aside and the question of the appellant's sentence on the offence of assault occasioning bodily harm is remitted to the District Court at Brisbane for determination at the completion of any re-trial in respect of count 1, the offence of rape.