SUPREME COURT OF QUEENSLAND
CITATION:
R v CAP [2009] QCA 174
PARTIES:
R
v
CAP
(applicant)FILE NO/S:
CA No 224 of 2008
DC No 241 of 2008DIVISION:
Court of Appeal
PROCEEDING:
Application for Extension (Sentence & Conviction)
ORIGINATING COURT:
District Court at Cairns
DELIVERED ON:
19 June 2009
DELIVERED AT:
Brisbane
HEARING DATE:
2 June 2009
JUDGES:
Keane JA, Cullinane and Jones JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDERS:
1. Application to extend time to appeal against conviction granted
2. Appeal against conviction allowed with respect to count 5
3. Conviction with respect to count 5 quashed and sentence imposed thereon set aside
4. Application to extend time to appeal against sentence dismissed
CATCHWORDS:
CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE – CONSENT – where applicant convicted of one count of carnal knowledge of an animal – where applicant manipulated male animal to penetrate complainant – where definition of carnal knowledge at relevant time meant that offence could only be perpetrated by a male person – where respondent agrees that conviction cannot stand – where conviction set aside
Criminal Code 1899 (Qld), s 7, s 208, s 211
R v H [2001] QCA 167, cited
R v P; ex parte A-G [2001] QCA 188, cited
R v RDD [2004] QCA 403, cited
R v Robinson [2007] QCA 99, citedCOUNSEL:
B G Devereaux SC for the applicant
M Connolly for the respondentSOLICITORS:
Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent
KEANE JA: I have had the advantage of reading a draft of the reasons for judgment prepared by Jones J. I agree with his Honour's reasons and with the orders proposed by his Honour.
CULLINANE J: I have read the draft reasons of Jones J in this matter and agree with those reasons and the orders he proposes.
JONES J: The applicant seeks leave to appeal out of time against his conviction on one offence and his sentences imposed in the remaining 13 offences. On 12 May 2008, the applicant pleaded guilty to all 14 charges on the indictment and the following penalties were imposed:-
(a) 4 counts of rape of his daughter (counts 1, 4, 6 and 7) – 19 years imprisonment
(b) 2 counts of rape against one niece and 2 counts of rape of a second niece and 1 count of rape against a third niece (counts 8, 10, 11, 12 and 14) – 17 years imprisonment.
(c) 4 counts of carnal knowledge against the order of nature (counts 2,5,9 and 13) – 14 years imprisonment.
(d) 1 count of assault occasioning bodily harm whilst armed (count 3) – 7 years imprisonment.
Extension of time
The applicant’s solicitor informs the Court that the applicant filed the appeal and the application for an extension of time to do so on…
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- AGLC
- R v CAP [2009] QCA 174
- Case
- [2009] QCA 174
- Decision Date
CaseChat Overview and Summary
The primary legal issue was whether the conviction for carnal knowledge of an animal could be upheld under the existing statutory definition, which required the offender to be male. Given that the applicant was female, the court had to determine if the conviction was valid. The court examined the statutory language and the respondent’s concession that the conviction was invalid due to the applicant's gender. The court's task was to decide whether the conviction should be quashed and the sentence set aside, and whether to grant the extension of time for the appeal.
The court accepted the respondent's concession that the conviction for carnal knowledge of an animal could not stand because the statutory definition required the offender to be male, and the applicant was female. The court quashed the conviction and set aside the sentence imposed on count 5. The court allowed the application to extend the time for appeal against the conviction but dismissed the application to extend the time for appeal against the sentence. The conviction on count 5 was quashed, and the sentence was set aside. The court dismissed the application to extend the time to appeal against the sentence.
Orders
Orders of the court
1. Application to extend time to appeal against conviction granted
2. Appeal against conviction allowed with respect to count 5
3. Conviction with respect to count 5 quashed and sentence imposed thereon set aside
4. Application to extend time to appeal against sentence 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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