R v CAP - [2009] QCA 174

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 2008

DIVISION:

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 made

ORDERS:

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, cited

COUNSEL:

B G Devereaux SC for the applicant
M Connolly for the respondent

SOLICITORS:

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…

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 CAP

Details

AGLC: R v CAP [2009] QCA 174
Case: [2009] QCA 174
Decision Date: 19 June 2009

CaseChat Overview and Summary

The applicant was convicted of one count of carnal knowledge of an animal, which involved manipulating a male animal to penetrate the complainant. The applicant sought an extension of time to appeal against his conviction and sentence. The case before the court involved examining the legal definition of carnal knowledge at the time of the offence, which stipulated that the offence could only be committed by a male person. The respondent conceded that the conviction could not stand given this definition.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v CAP [2009] QCA 174
PARTIES:	R v CAP (applicant)
FILE NO/S:	CA No 224 of 2008 DC No 241 of 2008
DIVISION:	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 made
ORDERS:	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, cited
COUNSEL:	B G Devereaux SC for the applicant M Connolly for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent