R v CDD - [2024] QCA 141

SUPREME COURT OF QUEENSLAND

CITATION:

R v CDD [2024] QCA 141

PARTIES:

R
v
CDD
(appellant)

FILE NO/S:

CA No 41 of 2024
DC No 791 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Cairns – Date of Conviction: 7 March 2024 (Farr SC DCJ)

DELIVERED ON:

6 August 2024

DELIVERED AT:

Brisbane

HEARING DATE:

18 July 2024

JUDGES:

Bowskill CJ and Mullins P and Henry J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was tried before a jury on an indictment alleging he sexually assaulted and raped his de facto wife’s niece – where the appellant was convicted of rape (count 2) – where the appellant was found not guilty of sexual assault (count 1) – where the appellant submits that the existence of reasonable doubt on consent-related issues on count 1 ought to have led to an acquittal on count 2 – where there was no intervening event between the occurrence of the two counts – where the appellant admitted oral sex occurred – whether the verdict of guilty on count 2 is inconsistent with the verdict of not guilty on count 1

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where the appellant was convicted of one count rape against the appellant’s de facto wife’s niece – where the appellant appeals against his conviction on the ground that the trial judge erred by making unfair comments regarding the word “willing” in the presence of the jury and in law by giving a related direction to the jury – where asked in evidence-in-chief by the Crown Prosecutor the complainant denied consenting to the sexual acts done by the appellant – where defence counsel cross-examined the complainant about whether she was “willing” to have sexual contact with the appellant – where the question posed in cross-examination was an unclear and compound question – where there were no clarifying questions – where the word “consent” was not deployed in any question in cross-examination – where the learned trial judge made comments, in the presence of the jury, regarding defence counsel’s incorrect use of the word “willing” – where the learned trial judge gave a direction to the jury directing them the words “let” and “willing” are not the same as consent – whether in the circumstances there was a miscarriage of justice

MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, applied
R v Makary [2019] 2 Qd R 528; [2018] QCA 258, explained

COUNSEL:

A M Hoare KC, with R G Logan, for the appellant
S L Dennis and T L Grasso for the respondent

SOLICITORS:

Magoffin Law for the appellant
Director of Public Prosecutions (Queensland) for the respondent

BOWSKILL CJ: I agree with Henry J.
MULLINS P: I agree with Henry J.
HENRY J: The appellant raped the 16 year old niece of his…

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 CDD

Details

AGLC: R v CDD [2024] QCA 141
Case: [2024] QCA 141
Decision Date: 6 August 2024

CaseChat Overview and Summary

The appellant in this case, CDD, was convicted of raping his de facto wife’s niece and was tried before a jury. The jury acquitted him of the lesser charge of sexual assault. CDD appealed against his conviction, arguing that the jury's verdicts were inconsistent and that the trial judge had made an error that amounted to a miscarriage of justice. The Court of Appeal needed to determine whether the verdicts were inconsistent and whether there was a miscarriage of justice due to the trial judge's comments.

The central issue in this appeal was whether the jury's verdicts were inconsistent. CDD argued that if there was reasonable doubt as to his consent for the lesser offence, this doubt should also apply to the more serious offence of rape. The Court had to consider if the absence of an intervening event between the two counts and the appellant's admission of oral sex could still lead to inconsistent verdicts. Additionally, the Court had to examine whether the trial judge's comments and directions to the jury regarding the word "willing" constituted a miscarriage of justice. The trial judge's comments were made in response to defence counsel's use of the term "willing" during cross-examination, a term that was not synonymous with "consent" and was deemed inappropriate by the trial judge.

The Court of Appeal found that the jury's verdicts were not inconsistent, as the elements of the two offences were distinct, and there was no legal requirement for the jury to find guilt on both counts. The Court also concluded that the trial judge's comments, although not ideal, did not amount to a miscarriage of justice. The comments were deemed to be a clarification of the legal standard for consent, which was a legitimate part of the trial judge's role in guiding the jury on the applicable law. The Court found that the trial judge's direction was a correct statement of law and did not prejudice the appellant's right to a fair trial.

As a result of the Court's findings, the appeal was dismissed. The conviction for the offence of rape was upheld, and no new trial was ordered. The Court held that the trial judge's comments did not constitute a miscarriage of justice and that the jury's verdicts were not inconsistent.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

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 CDD [2024] QCA 141
PARTIES:	R v CDD (appellant)
FILE NO/S:	CA No 41 of 2024 DC No 791 of 2022
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Cairns – Date of Conviction: 7 March 2024 (Farr SC DCJ)
DELIVERED ON:	6 August 2024
DELIVERED AT:	Brisbane
HEARING DATE:	18 July 2024
JUDGES:	Bowskill CJ and Mullins P and Henry J
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was tried before a jury on an indictment alleging he sexually assaulted and raped his de facto wife’s niece – where the appellant was convicted of rape (count 2) – where the appellant was found not guilty of sexual assault (count 1) – where the appellant submits that the existence of reasonable doubt on consent-related issues on count 1 ought to have led to an acquittal on count 2 – where there was no intervening event between the occurrence of the two counts – where the appellant admitted oral sex occurred – whether the verdict of guilty on count 2 is inconsistent with the verdict of not guilty on count 1 CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where the appellant was convicted of one count rape against the appellant’s de facto wife’s niece – where the appellant appeals against his conviction on the ground that the trial judge erred by making unfair comments regarding the word “willing” in the presence of the jury and in law by giving a related direction to the jury – where asked in evidence-in-chief by the Crown Prosecutor the complainant denied consenting to the sexual acts done by the appellant – where defence counsel cross-examined the complainant about whether she was “willing” to have sexual contact with the appellant – where the question posed in cross-examination was an unclear and compound question – where there were no clarifying questions – where the word “consent” was not deployed in any question in cross-examination – where the learned trial judge made comments, in the presence of the jury, regarding defence counsel’s incorrect use of the word “willing” – where the learned trial judge gave a direction to the jury directing them the words “let” and “willing” are not the same as consent – whether in the circumstances there was a miscarriage of justice MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, applied R v Makary [2019] 2 Qd R 528; [2018] QCA 258, explained
COUNSEL:	A M Hoare KC, with R G Logan, for the appellant S L Dennis and T L Grasso for the respondent
SOLICITORS:	Magoffin Law for the appellant Director of Public Prosecutions (Queensland) for the respondent