R v Coombes - [2012] QCA 157

SUPREME COURT OF QUEENSLAND

CITATION:

R v Coombes [2012] QCA 157

PARTIES:

R
v
COOMBES, Wayne Rocky
(appellant)

FILE NO/S:

CA No 55 of 2011
SC No 235 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

15 June 2012

DELIVERED AT:

Brisbane

HEARING DATE:

8 March 2012

JUDGES:

Margaret McMurdo P, Fraser JA and Margaret Wilson AJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where appellant was tried on five counts of rape – where appellant was acquitted on the first count and convicted on the other four – where on appeal the appellant submitted that the guilty verdicts on four of the counts were inconsistent with the not-guilty verdict on one of the counts – whether the verdicts can be reconciled – whether, by reason of that inconsistency, the four guilty verdicts are unsafe or unsatisfactory

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where on appeal the appellant submitted that the trial judge erred in not giving a discreditable conduct direction – where neither counsel requested that such a direction be given or raised any complaint about its absence – where on appeal the respondent submitted that in the circumstances of the case it was not necessary for the trial judge to give such a direction – where the trial judge ought to have given a direction about discreditable conduct – whether his failure to do so resulted in a miscarriage of justice

EVIDENCE – ADMISSIBILITY AND RELEVANCY – IN GENERAL – OTHER CASES – where on appeal the appellant submitted that the trial judge erred in admitting certain evidence – where the prosecutor and defence counsel reached agreement that a witness statement should be put before the jury as evidence of what that witness would have said had he given evidence – where counsel were jointly of the view that this could be done by way of admission under s 644 Criminal Code 1899 (Qld) – whether the evidence could be admitted under s 644 Criminal Code 1899 (Qld) – whether the trial judge erred in allowing the statement to be put before the jury

Criminal Code 1899 (Qld), s 644

MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited
R v Handley [2011] QCA 361, cited
R v McCosker [2011] 2 Qd R 138; [2010] QCA 52, cited
R v Radford (1993) 66 A Crim R 210; [1993] VicSC 237, cited
R v Smillie (2002) 134 A Crim R 100; [2002] QCA 341, cited

COUNSEL:

The appellant appeared on his own behalf
G P Cash for the respondent

SOLICITORS:

The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for…

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 Coombes

Details

AGLC: R v Coombes [2012] QCA 157
Case: [2012] QCA 157
Decision Date: 15 June 2012

CaseChat Overview and Summary

In the case of R v Coombes, the appellant was tried on five counts of rape, resulting in an acquittal on the first count and convictions on the remaining four. The appellant sought to appeal the convictions, arguing that the verdicts were inconsistent and therefore unsafe and unsatisfactory. The appellant also argued that the trial judge had failed to provide a necessary direction regarding discreditable conduct, and that certain evidence had been improperly admitted. The court was tasked with determining whether these grounds for appeal, if valid, amounted to a miscarriage of justice.

The primary issue before the court was whether the inconsistent verdicts on the rape charges could be reconciled and, if not, whether this inconsistency rendered the guilty verdicts on four counts unsafe or unsatisfactory. Additionally, the court needed to assess whether the trial judge's failure to provide a discreditable conduct direction amounted to a miscarriage of justice, despite no such request being made by either counsel. Lastly, the court had to consider whether the trial judge correctly admitted a particular witness statement under section 644 of the Criminal Code 1899 (Qld), given that both parties had agreed on its admissibility.

The court found that the inconsistent verdicts could be reconciled on the basis of the evidence presented at trial, thus negating the argument that the guilty verdicts were unsafe or unsatisfactory. Furthermore, the court determined that, although the trial judge should have provided a discreditable conduct direction, the omission did not result in a miscarriage of justice given the circumstances of the case. Finally, the court held that the trial judge did not err in admitting the witness statement, as it was properly agreed upon by both parties and fell within the parameters of section 644 of the Criminal Code 1899 (Qld).

The appeal was ultimately dismissed, with the court affirming the original convictions on the four counts of rape. The court did not find that any of the grounds for appeal presented by the appellant warranted a new trial or a reversal of the convictions.

Orders

Orders of the court

Appeal 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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CITATION:	R v Coombes [2012] QCA 157
PARTIES:	R v COOMBES, Wayne Rocky (appellant)
FILE NO/S:	CA No 55 of 2011 SC No 235 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	15 June 2012
DELIVERED AT:	Brisbane
HEARING DATE:	8 March 2012
JUDGES:	Margaret McMurdo P, Fraser JA and Margaret Wilson AJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where appellant was tried on five counts of rape – where appellant was acquitted on the first count and convicted on the other four – where on appeal the appellant submitted that the guilty verdicts on four of the counts were inconsistent with the not-guilty verdict on one of the counts – whether the verdicts can be reconciled – whether, by reason of that inconsistency, the four guilty verdicts are unsafe or unsatisfactory CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where on appeal the appellant submitted that the trial judge erred in not giving a discreditable conduct direction – where neither counsel requested that such a direction be given or raised any complaint about its absence – where on appeal the respondent submitted that in the circumstances of the case it was not necessary for the trial judge to give such a direction – where the trial judge ought to have given a direction about discreditable conduct – whether his failure to do so resulted in a miscarriage of justice EVIDENCE – ADMISSIBILITY AND RELEVANCY – IN GENERAL – OTHER CASES – where on appeal the appellant submitted that the trial judge erred in admitting certain evidence – where the prosecutor and defence counsel reached agreement that a witness statement should be put before the jury as evidence of what that witness would have said had he given evidence – where counsel were jointly of the view that this could be done by way of admission under s 644 Criminal Code 1899 (Qld) – whether the evidence could be admitted under s 644 Criminal Code 1899 (Qld) – whether the trial judge erred in allowing the statement to be put before the jury Criminal Code 1899 (Qld), s 644 MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited R v Handley [2011] QCA 361, cited R v McCosker [2011] 2 Qd R 138; [2010] QCA 52, cited R v Radford (1993) 66 A Crim R 210; [1993] VicSC 237, cited R v Smillie (2002) 134 A Crim R 100; [2002] QCA 341, cited
COUNSEL:	The appellant appeared on his own behalf G P Cash for the respondent
SOLICITORS:	The appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for…