R v D

Case [2003] QCA 347

SUPREME COURT OF QUEENSLAND

CITATION:

R v D  [2003] QCA 347

PARTIES:

R
v
D
(appellant)

FILE NO/S:

CA No 42 of 2003
DC 518 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction and Sentence

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

15 August 2003

DELIVERED AT:

Brisbane

HEARING DATE:

2 June 2003

JUDGES:

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

ORDER:

1.  Appeal against conviction dismissed
2.  Leave to appeal against sentence granted
3.  Appeal against sentence allowed
4.  Sentence imposed set aside only to the extent of removing each declaration that the appellant was convicted of a serious violent offence and by substituting a period of four and a half years imprisonment for the six years imprisonment imposed with regard to count one on the indictment

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where appellant convicted on one count of sexual assault, one count of indecent treatment of a child under the age of 12 years, and one count of attempted sexual assault with a circumstance of aggravation – where trial judge allowed passages from appellant’s record of interview with police to be admitted at trial – whether trial judge should have exercised discretion to exclude propensity evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – where appellant convicted on three counts and acquitted on one count – where appellant gave conflicting answers in record of interview with police – whether verdicts were unsafe and unsatisfactory

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – FACTUAL BASIS FOR SENTENCE – where appellant sentenced to six years imprisonment on count one, two years imprisonment on count two, and four years imprisonment on count three – where appellant declared to be convicted of a serious violent offence in respect of each conviction – where no finding the appellant had been convicted of an offence of serious violence or an offence resulting in serious harm to another person – whether sentence manifestly excessive

Criminal Code 1899 (Qld), s 592A, s 352
Evidence Act 1977 (Qld), s 93A
Penalties and Sentences Act 1992 (Qld), Part 9A
Police Powers and Responsibilities Act 2000 (Qld), s 251

Crampton v The Queen (2000) 206 CLR 161, considered
Dinsdale v The Queen (2000) 202 CLR 321, cited
Harriman v The Queen (1989) 167 CLR 590, cited
Hoch v The Queen (1988) 165 CLR 292, cited
Jones v The Queen (1997) 191 CLR 439, cited
MacKenzie v The Queen (1996) 190 CLR 348, cited
R v A [2000] QCA 520, CA No 118 at 2000, 19 December 2000, cited
R…

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Details
AGLC
R v D [2003] QCA 347
Case
[2003] QCA 347
Decision Date

CaseChat Overview and Summary

The appeal against conviction and sentence in this case was heard by the High Court of Australia. The appellant was convicted on one count of sexual assault, one count of indecent treatment of a child under the age of 12 years, and one count of attempted sexual assault with a circumstance of aggravation. The appellant was acquitted on another count of attempted sexual assault. The court was required to decide whether the trial judge should have exercised their discretion to exclude propensity evidence, and whether the verdicts were unsafe and unsatisfactory. The court was also required to determine whether the sentence imposed was manifestly excessive.

The court found that the trial judge did not err in admitting passages from the appellant's record of interview with police, as the evidence was relevant to the charges and was not propensity evidence. The court also found that the verdicts were not unsafe and unsatisfactory, as the jury was properly directed on the law and there was sufficient evidence to support the convictions. However, the court found that the sentence imposed was manifestly excessive, as there was no finding that the appellant had been convicted of an offence of serious violence or an offence resulting in serious harm to another person.

The appeal against conviction was dismissed, and leave to appeal against sentence was granted. The appeal against sentence was allowed, and the sentence imposed was set aside only to the extent of removing each declaration that the appellant was convicted of a serious violent offence and by substituting a period of four and a half years imprisonment for the six years imprisonment imposed with regard to count one on the indictment. The appellant's convictions on the other counts remain, and the appellant is still required to serve the remaining terms of imprisonment imposed by the trial judge.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Leave to appeal against sentence granted

3. Appeal against sentence allowed

4. Sentence imposed set aside only to the extent of removing each declaration that the appellant was convicted of a serious violent offence and by substituting a period of four and a half years imprisonment for the six years imprisonment imposed with regard to count one on the indictment

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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