R v Cook - [2012] QCA 251

[2012] QCA 251

COURT OF APPEAL

MARGARET McMURDO P
McMEEKIN J
HENRY J

CA No 65 of 2012
DC No 113 of 2010

THE QUEEN

COOK, Genai Morris Appellant

BRISBANE

DATE 18/09/2012

JUDGMENT

THE PRESIDENT: The appellant was convicted by a jury after a two day trial of raping the complainant on 27 June, 2009, at Thursday Island. He was sentenced to seven and a half years imprisonment. He was granted an extension of time within which to appeal against conviction, and to apply for leave to appeal against sentence on 23 April, 2012. He originally appealed against his conviction on the grounds that it was unsafe and unsatisfactory. He also contended that his sentence was manifestly excessive. He was initially refused Legal Aid on 27 July, 2012, but that decision was later reversed after an officer of the Director of Public Prosecutions (Queensland) informed Legal Aid Queensland of concerns that a miscarriage of justice had occurred in this case. I commend the DPP for this approach in ensuring that the criminal justice system of Queensland operates fairly.

At the hearing of the appeal today, the appellant was given leave to abandon his grounds of appeal, and his application for leave to appeal against sentence, and to argue the following grounds of appeal against his conviction:

"1.The learned trial judge failed to discharge the duty of the Court under s 620 Criminal Code to instruct the jury as to the law applicable to the case.
2.The learned trial judge failed to accurately and fairly put the defence case when summing up.
3.The learned trial judge erred in not directing the jury as to the excuse, pursuant to s 24 of the Criminal Code, of honest and reasonable mistake as to consent."

In this most unusual case, counsel for the respondent, Ms Merrin, whose outline of argument was filed before that of counsel for the appellant, identified errors in the judge's summing up to the jury, and conceded that these shortcomings incorporated in grounds 1 and 2 of the appeal, had resulted in a miscarriage of justice, necessitating the allowing of the appeal, the setting aside of the guilty verdict, and the ordering of a new trial. Ms Merrin conceded in her oral submissions that ground 3 was also established.

Despite that very fair concession, this Court cannot make the orders proposed by both counsel without satisfying itself that those orders are correct.

The prosecution evidence at trial was as follows. The appellant and the complainant knew each other by sight and name as fellow residents of Thursday Island but they were not close. During the evening of Friday, 26 June, 2009 they had been drinking with others into the early hours of the next morning. The householder of the house where they arrived after the Torres Hotel closed, Mr Wayne Thompson, offered the complainant a room in which to sleep. She retired there and went to sleep whilst the appellant continued drinking with others. He asked for directions…

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 Cook

Details

AGLC: R v Cook [2012] QCA 251
Case: [2012] QCA 251
Decision Date: 18/09/2012

CaseChat Overview and Summary

In the Queensland Court of Appeal, the appellant, Genai Morris Cook, sought to appeal against his conviction for the rape of a woman on 27 June 2009 at Thursday Island. The appellant was sentenced to seven and a half years imprisonment and appealed on the grounds that his conviction was unsafe and unsatisfactory and that his sentence was manifestly excessive. After considering the appeal, the Court allowed the appellant to abandon his original grounds of appeal and instead focus on the failure of the trial judge to properly instruct the jury regarding the law applicable to the case. The Court found that the trial judge's summing up of the evidence was inadequate, as it did not provide the jury with sufficient instruction on the meaning of "unlawful carnal knowledge" and the circumstances in which the complainant could not consent. Additionally, the trial judge failed to accurately and fairly summarise the defence case and did not direct the jury as to the excuse of honest and reasonable mistake as to consent. As a result, the Court allowed the appeal, set aside the conviction and ordered a new trial.

The primary legal issues that the Court of Appeal needed to decide in this case were whether the trial judge had properly instructed the jury on the applicable law and whether the summing up accurately and fairly presented the defence case. The Court found that the trial judge's summing up was inadequate and did not provide the jury with sufficient instruction on the relevant legal concepts. This failure meant that the appellant had not received a fair trial according to law, and the conviction was therefore unsafe and unsatisfactory. The Court also found that the trial judge should have directed the jury on the excuse of honest and reasonable mistake as to consent, which was raised by the evidence presented in the case.

The Court of Appeal's decision in this case was based on the principle that a defendant is entitled to a fair trial according to law, which includes proper instructions to the jury on the applicable law and a fair presentation of the defence case. The Court held that the trial judge's summing up was inadequate and did not meet these standards, resulting in the appellant not receiving a fair trial. Consequently, the Court allowed the appeal, set aside the conviction, and ordered a new trial to ensure that the appellant receives a fair trial according to law.

Orders