R v CBK - [2014] QCA 35

SUPREME COURT OF QUEENSLAND

CITATION:

R v CBK [2014] QCA 35

PARTIES:

R
v
CBK
(appellant/applicant)

FILE NO/S:

CA No 173 of 2013
DC No 488 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

Orders delivered ex tempore on 18 February 2014
Reasons delivered 7 March 2014

DELIVERED AT:

Brisbane

HEARING DATE:

18 February 2014

JUDGES:

Margaret McMurdo P and Muir JA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Delivered ex tempore on 18 February 2014:

1.   The appeal is allowed.

2.   The verdicts of guilty are set aside.

3.   A retrial is ordered.

4.   The application for leave to appeal against sentence in respect of Count 4 is granted.

5.   The appeal against sentence is allowed.

6.   The sentence is set aside.

7.   The question of sentence on that Count is remitted to the District Court.

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – MATTERS RELATING TO PROOF – STANDARD OF PROOF – DIRECTIONS TO JURY – REASONABLE DOUBT – GENERALLY – where the appellant was convicted of four offences after a three day trial – where the trial judge directed the jury as to the standard of proof in the trial by drawing an analogy with an LBW decision in cricket – where the direction was unhelpful and confusing – where the appellant contends this amounted to a misdirection warranting a retrial – where the respondent contends that the direction did not elaborate on the meaning of beyond reasonable doubt but rather on the effect of having a reasonable doubt – whether a retrial should be ordered

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant was convicted of one count of rape involving a single episode of digital penetration and sentenced to five years imprisonment – where the complainant was very young and vulnerable – where the applicant was in a position of trust – where the applicant did not have the mitigating features of a timely plea, cooperation with the authorities, remorse or insight – where the applicant had previous convictions for sexual offences against children – whether the sentence was manifestly excessive – whether this Court should re-sentence the applicant – whether the sentence should be remitted to the District Court to be dealt with at the conclusion of the appellant's retrial

Darkan v The Queen (2006) 227 CLR 373; (2006) 80 ALJR 1250; [2006] HCA 34, cited
Dawson v The Queen (1961) 106 CLR 1; [1961] HCA 74, cited
Green v The Queen (1971) 126 CLR 28; [1971] HCA 55, considered
R v AAD [2008] QCA 4, cited
R v Lee [2012] QCA 313, cited
R v RAH[2011] QCA 35, cited

COUNSEL:

C Reid on behalf of the appellant/applicant
D Meredith on behalf of 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 CBK

Details

AGLC: R v CBK [2014] QCA 35
Case: [2014] QCA 35
Decision Date: 18 February 2014

CaseChat Overview and Summary

In the case of R v CBK, the appellant, CBK, was convicted of four criminal offences following a trial. CBK appealed against both the conviction and the sentence imposed. The appeal against conviction focused on the trial judge's direction to the jury regarding the standard of proof. The trial judge had drawn an analogy with an LBW decision in cricket to explain the concept of reasonable doubt, which CBK argued was unhelpful and confusing, leading to a misdirection warranting a retrial. The appeal against sentence concerned the five-year imprisonment term imposed on CBK for one count of rape, which the appellant argued was manifestly excessive.

The legal issues before the court were whether the trial judge's direction on the standard of proof constituted a misdirection and, if so, whether this warranted a retrial. Additionally, the court needed to determine whether the sentence imposed was manifestly excessive and whether the sentence should be remitted to the District Court. The court examined the trial judge's direction in the context of the overall fairness of the trial and the adequacy of the jury's understanding of the standard of proof. In considering the sentence, the court assessed the mitigating and aggravating factors, including the vulnerability of the complainant, the position of trust held by the appellant, and the appellant's previous convictions for similar offences.

The court found that the trial judge's direction on the standard of proof was indeed misleading and confusing, and that this amounted to a misdirection. The analogy drawn with an LBW decision in cricket did not adequately convey the meaning of reasonable doubt to the jury, leading to an unfair trial. Consequently, the convictions were set aside, and a retrial was ordered. Regarding the sentence, the court determined that the five-year term for the rape conviction was manifestly excessive, taking into account the aggravating factors such as the vulnerability of the complainant and the appellant's previous convictions for sexual offences against children. The sentence was set aside, and the matter was remitted to the District Court to be re-sentenced following the retrial.

In summary, the appeal was allowed, the convictions were set aside, and a retrial was ordered. The application for leave to appeal against the sentence was granted, and the sentence was set aside. The question of re-sentencing on the fourth count was remitted to the District Court to be dealt with at the conclusion of the retrial.

Orders

Orders of the court

Delivered ex tempore on 18 February 2014:

1. The appeal is allowed.

2. The verdicts of guilty are set aside.

3. A retrial is ordered.

4. The application for leave to appeal against sentence in respect of Count 4 is granted.

5. The appeal against sentence is allowed.

6. The sentence is set aside.

7. The question of sentence on that Count is remitted to the District Court.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v CBK [2014] QCA 35
PARTIES:	R v CBK (appellant/applicant)
FILE NO/S:	CA No 173 of 2013 DC No 488 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	Orders delivered ex tempore on 18 February 2014 Reasons delivered 7 March 2014
DELIVERED AT:	Brisbane
HEARING DATE:	18 February 2014
JUDGES:	Margaret McMurdo P and Muir JA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Delivered ex tempore on 18 February 2014: 1. The appeal is allowed. 2. The verdicts of guilty are set aside. 3. A retrial is ordered. 4. The application for leave to appeal against sentence in respect of Count 4 is granted. 5. The appeal against sentence is allowed. 6. The sentence is set aside. 7. The question of sentence on that Count is remitted to the District Court.
CATCHWORDS:	CRIMINAL LAW – EVIDENCE – MATTERS RELATING TO PROOF – STANDARD OF PROOF – DIRECTIONS TO JURY – REASONABLE DOUBT – GENERALLY – where the appellant was convicted of four offences after a three day trial – where the trial judge directed the jury as to the standard of proof in the trial by drawing an analogy with an LBW decision in cricket – where the direction was unhelpful and confusing – where the appellant contends this amounted to a misdirection warranting a retrial – where the respondent contends that the direction did not elaborate on the meaning of beyond reasonable doubt but rather on the effect of having a reasonable doubt – whether a retrial should be ordered CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant was convicted of one count of rape involving a single episode of digital penetration and sentenced to five years imprisonment – where the complainant was very young and vulnerable – where the applicant was in a position of trust – where the applicant did not have the mitigating features of a timely plea, cooperation with the authorities, remorse or insight – where the applicant had previous convictions for sexual offences against children – whether the sentence was manifestly excessive – whether this Court should re-sentence the applicant – whether the sentence should be remitted to the District Court to be dealt with at the conclusion of the appellant's retrial Darkan v The Queen (2006) 227 CLR 373; (2006) 80 ALJR 1250; [2006] HCA 34, cited Dawson v The Queen (1961) 106 CLR 1; [1961] HCA 74, cited Green v The Queen (1971) 126 CLR 28; [1971] HCA 55, considered R v AAD [2008] QCA 4, cited R v Lee [2012] QCA 313, cited R v RAH[2011] QCA 35, cited
COUNSEL:	C Reid on behalf of the appellant/applicant D Meredith on behalf of the…