R v D - [2003] QCA 148

SUPREME COURT OF QUEENSLAND

CITATION:

R v D [2003] QCA 148

PARTIES:

R
v
D
(appellant/applicant)

FILE NO/S:

CA No 207 of 2002
CA No 232 of 2002
DC No 163 of 2002

DIVISION:

Court of Appeal

PROCEEDINGS:

Appeal against Conviction
Sentence Application

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

4 April 2003

DELIVERED AT:

Brisbane

HEARING DATE:

28 March 2003

JUDGES:

McPherson and Williams JJA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal against conviction dismissed
2. Application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE EVIDENCE CIRCUMSTANTIAL – where appellant convicted on one count of rape – where prosecution relied on the circumstance of the appellant being the only adult with the child when the injury occurred – whether the inference of the appellant’s guilt beyond reasonable doubt was the only rational inference open to the jury

CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENCE – RAPE – where appellant convicted of raping his four-year-old daughter – where appellant sentenced to 14 years imprisonment – where appellant showed no remorse – where complainant suffered serious physical injuries and severe psychological harm – where appellant likely to re-offend – whether sentence manifestly excessive

Criminal Law Amendment Act 1945 (Qld), s 19
Evidence Act 1977 (Qld), s 93A

Jones v R (1997) 191 CLR 439, applied
M v R (1994) 181 CLR 487, applied
R v D [2003] QCA 88; CA No 444 of 2002, 4 March 2003, considered

COUNSEL:

T Carmody SC with K M McGinness for the appellant/applicant
L J Clare for the respondent

SOLICITORS:

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

McPHERSON JA: I agree with the reasons of Atkinson J. The appeal against conviction should be dismissed and with it the application for leave to appeal against sentence.

WILLIAMS JA: The relevant facts are fully set out in the reasons for judgment of Atkinson J which I have had the advantage of reading.

So far as the appeal against conviction is concerned, the critical evidence, in my view, is that of Dr Gavranich, the paediatric specialist, who examined the complainant when she was taken to the hospital. His evidence (there was no competing evidence) clearly establishes that the injury was sustained by an object which penetrated the complainant's vagina without causing significant injury to the external genitalia. A police search of the home in which the complainant and the appellant resided did not locate any object on which the complainant could have fallen and which would have occasioned an injury of that specific type. The edge of the child's potty was clearly not capable of causing the specific injury.

The appellant was the…

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 D

Details

AGLC: R v D [2003] QCA 148
Case: [2003] QCA 148
Decision Date: 4 April 2003

CaseChat Overview and Summary

The appellant, D, was convicted of raping his four-year-old daughter. The case came before the court on appeal against the conviction and for a sentence review. The prosecution's case rested heavily on the fact that the appellant was the only adult present with the child when the injury occurred. The court had to determine whether the jury's conclusion that the appellant's guilt was proven beyond reasonable doubt was the only rational inference they could have drawn from the evidence.

The court examined the evidence, which was largely circumstantial, and concluded that the jury was entitled to find the appellant guilty based on the circumstances presented. The court found that the inference of guilt was open to the jury, and therefore dismissed the appeal against the conviction. Regarding the sentence, the court considered the nature of the offence, the injuries suffered by the complainant, the appellant's lack of remorse, and the likelihood of re-offending. Ultimately, the court found that the 14-year sentence was not manifestly excessive.

The court dismissed the appeal against the conviction, finding that the jury was entitled to conclude that the appellant's guilt was proven beyond reasonable doubt. The application for leave to appeal against the sentence was also refused. The court found that the sentence was within an acceptable range, taking into account the severity of the crime and the need to deter the appellant and others from committing similar offences.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence refused

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 D [2003] QCA 148
PARTIES:	R v D (appellant/applicant)
FILE NO/S:	CA No 207 of 2002 CA No 232 of 2002 DC No 163 of 2002
DIVISION:	Court of Appeal
PROCEEDINGS:	Appeal against Conviction Sentence Application
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	4 April 2003
DELIVERED AT:	Brisbane
HEARING DATE:	28 March 2003
JUDGES:	McPherson and Williams JJA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal against conviction dismissed 2. Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE EVIDENCE CIRCUMSTANTIAL – where appellant convicted on one count of rape – where prosecution relied on the circumstance of the appellant being the only adult with the child when the injury occurred – whether the inference of the appellant’s guilt beyond reasonable doubt was the only rational inference open to the jury CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENCE – RAPE – where appellant convicted of raping his four-year-old daughter – where appellant sentenced to 14 years imprisonment – where appellant showed no remorse – where complainant suffered serious physical injuries and severe psychological harm – where appellant likely to re-offend – whether sentence manifestly excessive Criminal Law Amendment Act 1945 (Qld), s 19 Evidence Act 1977 (Qld), s 93A Jones v R (1997) 191 CLR 439, applied M v R (1994) 181 CLR 487, applied R v D [2003] QCA 88; CA No 444 of 2002, 4 March 2003, considered
COUNSEL:	T Carmody SC with K M McGinness for the appellant/applicant L J Clare for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant/applicant Director of Public Prosecutions (Queensland) for the respondent