R v CV - [2004] QCA 411

SUPREME COURT OF QUEENSLAND

CITATION:

R v CV [2004] QCA 411

PARTIES:

R
v
CV
(appellant)

FILE NO/S:

CA No 182 of 2004
DC No 772 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Bundaberg

DELIVERED ON:

5 November 2004

DELIVERED AT:

Brisbane

HEARING DATE:

24 September 2004

JUDGES:

Williams JA, and Cullinane and Jones JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal against conviction dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED - appellant convicted of three counts of rape and acquitted of one count of common assault – rapes took place in house while others present – whether acquittal on assault charge meant that convictions were unsafe – whether it was open to the jury on the evidence to be satisfied beyond reasonable doubt of the guilt of the appellant – whether convictions unsafe or unreasonable

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – WHERE GROUNDS FOR INTERFERENCE WITH VERDICT – PARTICULAR CASES – WHERE APPEAL DISMISSED – only issue was consent – appellant gave evidence that complainant was willing participant – appellant’s evidence rejected by jury – whether case should be viewed as though appellant had not given evidence – whether learned trial judge should have directed jury as to mistake of fact as to consent under s 24 of Criminal Code (Qld)

Criminal Code (Qld), s 24

Jones v The Queen (1997) 191 CLR 439, cited
Larson v GJ Coles & Co Ltd; Ex parte GJ Coles & Co Ltd (1984) 13 A Crim R 109, applied
Lyons v R (1987) 24 A Crim R 298, considered
M v The Queen (1994) 181 CLR 487, cited
R v Ugolini (1989) 51 SASR 303, considered
Van Den Hoek v The Queen (1986) 161 CLR 158, cited

COUNSEL:

A J Moynihan for the appellant
M J Copley for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

WILLIAMS JA: I have had the advantage of reading the reasons for judgment of Jones J and I agree with his analysis of the issues raised by the appeal.

As noted therein counsel for the appellant submitted, in relation to the question whether the jury should have been directed on s 24 of the Criminal Code, that the matter had to be viewed as though the appellant had not given evidence because his evidence had obviously been rejected by the jury. No authority was cited in support of that approach. In my view the question whether or not s 24 should have been put to the jury must be considered in the light of all of the evidence. As pointed out by…

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 CV

Details

AGLC: R v CV [2004] QCA 411
Case: [2004] QCA 411
Decision Date: 5 November 2004

CaseChat Overview and Summary

The appellant, CV, appealed against his convictions for three counts of rape, arguing that the verdict was unreasonable or unsafe, and that the trial judge misdirected the jury on the issue of consent. The appellant was acquitted on a charge of common assault. The trial involved multiple witnesses and occurred in a house where other people were present. The jury was tasked with determining whether the appellant's evidence that the complainant was a willing participant was credible and whether the convictions were supported by the evidence beyond reasonable doubt.

The court considered whether the acquittal on the assault charge meant that the convictions for rape were unsafe. It examined whether the jury, viewing the evidence objectively, could have been satisfied beyond reasonable doubt that the appellant was guilty of the rape charges. The court also assessed whether the trial judge should have directed the jury on the concept of mistake of fact as to consent under section 24 of the Criminal Code (Qld). After thorough examination of the evidence and the trial judge's directions, the court concluded that the jury's verdicts were open to them on the evidence presented. The appellant's evidence was rejected by the jury, and the court found no basis to interfere with the verdicts.

The appeal was dismissed, and the convictions were upheld. The court found that the jury's verdicts were not unreasonable or unsafe, and that the trial judge did not err in their directions to the jury. The court's decision was based on a careful consideration of the evidence and the legal principles applicable to the case. The final orders were that the appeal against conviction was dismissed.

Orders

Orders of the court

Appeal against conviction 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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v CV [2004] QCA 411
PARTIES:	R v CV (appellant)
FILE NO/S:	CA No 182 of 2004 DC No 772 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Bundaberg
DELIVERED ON:	5 November 2004
DELIVERED AT:	Brisbane
HEARING DATE:	24 September 2004
JUDGES:	Williams JA, and Cullinane and Jones JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal against conviction dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED - appellant convicted of three counts of rape and acquitted of one count of common assault – rapes took place in house while others present – whether acquittal on assault charge meant that convictions were unsafe – whether it was open to the jury on the evidence to be satisfied beyond reasonable doubt of the guilt of the appellant – whether convictions unsafe or unreasonable CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – WHERE GROUNDS FOR INTERFERENCE WITH VERDICT – PARTICULAR CASES – WHERE APPEAL DISMISSED – only issue was consent – appellant gave evidence that complainant was willing participant – appellant’s evidence rejected by jury – whether case should be viewed as though appellant had not given evidence – whether learned trial judge should have directed jury as to mistake of fact as to consent under s 24 of Criminal Code (Qld) Criminal Code (Qld), s 24 Jones v The Queen (1997) 191 CLR 439, cited Larson v GJ Coles & Co Ltd; Ex parte GJ Coles & Co Ltd (1984) 13 A Crim R 109, applied Lyons v R (1987) 24 A Crim R 298, considered M v The Queen (1994) 181 CLR 487, cited R v Ugolini (1989) 51 SASR 303, considered Van Den Hoek v The Queen (1986) 161 CLR 158, cited
COUNSEL:	A J Moynihan for the appellant M J Copley for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent