R v DAK - [2005] QCA 211

SUPREME COURT OF QUEENSLAND

CITATION:

R v DAK [2005] QCA 211

PARTIES:

R
v
DAK
(appellant/applicant)

FILE NO/S:

CA No 45 of 2005
DC No 46 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Dalby

DELIVERED ON:

17 June 2005

DELIVERED AT:

Brisbane

HEARING DATE:

2 June 2005

JUDGES:

de Jersey CJ, Keane JA and Mullins 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. Application for leave to appeal against sentence 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 - where appellant had been charged with burglary, sexual assault and rape on the same indictment - where appellant pleaded not guilty to all counts and was tried by jury - where appellant found guilty of burglary and rape - where jury declined to return a verdict on charge of sexual assault - where the substance of the Crown case in relation to all three charges was contained in the testimony of the complainant - where jury had indicated difficulty reaching a verdict during their deliberations - where trial judge had warned the jury to consider each count separately and on its own merits - whether the failure to return a verdict on the sexual assault charge was inconsistent with the guilty verdicts returned on the charges of burglary and rape - whether, having regard to the whole of the evidence adduced at the trial, the jury had acted unreasonably in finding the appellant guilty of burglary and rape

Black v The Queen (1993) 179 CLR 44, cited
Crofts v The Queen (1996) 186 CLR 427, applied
Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414, applied
M v The Queen (1994) 181 CLR 487, applied
MacKenzie v The Queen (1996) 190 CLR 348, distinguished

R v Davidson [2000] QCA 39; CA No 369 of 1999, 28 July 2000, applied

COUNSEL:

D R Kent for appellant/applicant
M J Copley for respondent

SOLICITORS:

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

de JERSEY CJ: I have had the advantage of reading the reasons for judgment of Keane JA. I agree that the appeal should be dismissed, for those reasons.

KEANE JA: The appellant has been convicted of one count of burglary at night with violence and one count of rape. The offences were found to have been committed on the evening of 11 May 2004. He was sentenced to six years imprisonment. An application for leave to appeal against sentence was not pressed and was dismissed at the hearing of the appeal against conviction. The appeal against conviction is put on the basis that the verdict is unsafe and unsatisfactory. I shall examine the appellant's contentions in this regard in detail…

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 DAK

Details

AGLC: R v DAK [2005] QCA 211
Case: [2005] QCA 211
Decision Date: 17 June 2005

CaseChat Overview and Summary

In the Supreme Court of Queensland, the appellant, DAK, appealed against his conviction for burglary and rape, as well as the refusal of the trial judge to order a new trial. The appellant had been found guilty of burglary and rape following a jury trial but was not convicted of the sexual assault charge as the jury could not reach a verdict. The appellant argued that the failure to convict him of the sexual assault charge was inconsistent with the guilty verdicts on the burglary and rape charges, and that the jury had acted unreasonably in finding him guilty of the latter two charges.

The primary legal issue before the court was whether the jury's failure to return a verdict on the sexual assault charge was inconsistent with their guilty verdicts on the burglary and rape charges. The court also needed to determine whether, considering the entirety of the evidence, the jury had acted unreasonably in finding the appellant guilty of the burglary and rape charges. The court considered the principles established in several precedent cases, including Black v The Queen, Crofts v The Queen, Gilbert v The Queen, M v The Queen, MacKenzie v The Queen, and R v Davidson.

The court found that the jury's failure to return a verdict on the sexual assault charge did not necessarily render the guilty verdicts on the burglary and rape charges inconsistent or unreasonable. The court concluded that the jury had followed the trial judge's instruction to consider each charge separately and on its own merits, and that the jury's verdicts were consistent with the evidence presented. The court also held that the jury had not acted unreasonably in finding the appellant guilty of the burglary and rape charges, as the evidence supported the convictions. Consequently, the appeal against the conviction and the application for leave to appeal against the sentence were both dismissed.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence 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 DAK [2005] QCA 211
PARTIES:	R v DAK (appellant/applicant)
FILE NO/S:	CA No 45 of 2005 DC No 46 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Dalby
DELIVERED ON:	17 June 2005
DELIVERED AT:	Brisbane
HEARING DATE:	2 June 2005
JUDGES:	de Jersey CJ, Keane JA and Mullins 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. Application for leave to appeal against sentence 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 - where appellant had been charged with burglary, sexual assault and rape on the same indictment - where appellant pleaded not guilty to all counts and was tried by jury - where appellant found guilty of burglary and rape - where jury declined to return a verdict on charge of sexual assault - where the substance of the Crown case in relation to all three charges was contained in the testimony of the complainant - where jury had indicated difficulty reaching a verdict during their deliberations - where trial judge had warned the jury to consider each count separately and on its own merits - whether the failure to return a verdict on the sexual assault charge was inconsistent with the guilty verdicts returned on the charges of burglary and rape - whether, having regard to the whole of the evidence adduced at the trial, the jury had acted unreasonably in finding the appellant guilty of burglary and rape Black v The Queen (1993) 179 CLR 44, cited Crofts v The Queen (1996) 186 CLR 427, applied Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414, applied M v The Queen (1994) 181 CLR 487, applied MacKenzie v The Queen (1996) 190 CLR 348, distinguished R v Davidson [2000] QCA 39; CA No 369 of 1999, 28 July 2000, applied
COUNSEL:	D R Kent for appellant/applicant M J Copley for respondent
SOLICITORS:	Legal Aid Queensland for appellant/applicant Director of Public Prosecutions (Queensland) for respondent