R v DAL

Case [2005] QCA 281 12 August 2005

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SUPREME COURT OF QUEENSLAND

CITATION:

R v DAL [2005] QCA 281

PARTIES:

R
v
DAL
(appellant)

FILE NO/S:

CA No 74 of 2005
DC No 80 of 2005
DC No 86 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

12 August 2005

DELIVERED AT:

Brisbane

HEARING DATE:

28 July 2005

JUDGES:

McMurdo P, McPherson and Keane JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders 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 - where appellant was charged with 23 counts arising out of his abduction and sexual abuse of two young female tourists - where the offences charged included multiple counts of deprivation of liberty, torture and rape - where appellant was convicted on eleven counts and acquitted on one count with the jury failing to return a verdict on the other eleven counts - where it was accepted that there was evidence on which the jury could have convicted in relation to each of the counts that was charged - where it was submitted that the "inconsistent verdicts" which eventuated suggested that the jury had acted unreasonably and had failed to properly understand their function - whether a failure to reach a verdict can be equated with an acquittal for the purposes of establishing "inconsistent verdicts" - whether there was a rational explanation for the jury returning a verdict in relation to some counts and not others - whether it was possible to explain the failure to convict on some counts as a "merciful disagreement"

Criminal Code 1899 (Qld), s 668E(1)

MacKenzie v The Queen (1996) 190 CLR 348, applied

Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316, applied

R v Charlesworth (1861) 1 B & S 460; 121 ER 786, cited

R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82, cited

R v Ritchie [2005] VSCA 166; No 238 of 2004, 29 June 2005, cited

Re Mercy Catharine Newton (1849) 13 QB 716; 116 ER 1437, cited

Winsor v The Queen (1866) LR 1 QB 289, considered

COUNSEL:

P J Callaghan SC for the appellant
M J Copley for the respondent

SOLICITORS:

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

McMURDO P: I agree with Keane JA's reasons for dismissing the appeal.

McPHERSON JA: The appeal against conviction in this case is said to raise a question of “inconsistency” between verdicts of guilty returned by the jury to one or more counts in the indictment and their failure to reach verdicts on one or more of the other counts in the indictment. I have been unable to persuade myself that any such inconsistency exists or is capable of arising.…

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 DAL

Details

AGLC: R v DAL [2005] QCA 281
Case: [2005] QCA 281
Decision Date: 12 August 2005

CaseChat Overview and Summary

The appellant appealed against his conviction on eleven counts arising from the abduction and sexual abuse of two young female tourists. The appellant was convicted on eleven counts and acquitted on one count with the jury failing to return a verdict on the other eleven counts. The Court of Appeal was required to determine whether the jury's inconsistent verdicts suggested that they had acted unreasonably or failed to properly understand their function. Specifically, the court considered whether a failure to reach a verdict could be equated with an acquittal for the purposes of establishing inconsistent verdicts, and whether there was a rational explanation for the jury returning a verdict in relation to some counts and not others.

The Court of Appeal held that the jury's failure to reach a verdict could be equated with an acquittal for the purposes of establishing inconsistent verdicts. The court found that there was a rational explanation for the jury returning a verdict in relation to some counts and not others, as the evidence in relation to some counts was stronger than that in relation to others. The court also held that the failure to convict on some counts could be explained as a "merciful disagreement" on the part of the jury. 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

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Citations

R v DAL [2005] QCA 281

Most Recent Citation

Pillay v The Queen [2014] VSCA 249

Cases Citing This Decision

Barton (a pseudonym) v The King; Director of Public Prosecutions v Barton (a pseudonym) [2025] VSCA 74
Citation 1 (Para 7)

…–[66] (Redlich, Weinberg and Hanson JJA); see also Gul v The Queen [2017] VSCA 153, [56] (Ashley and Priest JJA), [196] (Croucher AJA); R v DAL [2005] QCA 281, [21] (McPherson JA).…
R v GBQ [2025] QCA 33
Citation 2 (Para 2)

…asis of the jury acting mercifully towards the appellant given that it was one course of conduct and only resulted in two charges.[18] [18]Cf R v DAL [2005] QCA 281 at [28].…
R v Jal [2025] QCA 17
Citation 3 (Para 21)

…way. The failure of the jury to reach a verdict on count 5 is not relevant to the analysis, as it is not tantamount to an acquittal.[57] [57] R v DAL [2005] QCA 281 at [8] per McPherson JA and [21] per Keane JA (with whom McMurdo P agreed).…
R v Oaa [2024] QCA 70
Citation 4 (Para 1)

…the circumstance of aggravation for count 14 to demonstrate that the guilty verdicts were unreasonable, it should be noted, as explained in R v DAL [2005] QCA 281 at [22]-[27] by Keane JA (with whom McMurdo P agreed), the failure by a jury to agree on verdicts should not necessarily be equated with a verdict of a…
R v DBZ [2022] QCA 200
Citation 5 (Para 7)

…s on the propositions found in MacKenzie v The Queen (1996) 190 CLR 348 at 366-368 as to the effect of inconsistent verdicts. As explained in R v DAL [2005] QCA 281 at [22]-[27], the failure by a jury to agree on verdicts should not necessarily be equated with a verdict of acquittal for the purpose of applying th…
R v WS [2021] NSWCCA 124
Citation 6 (Para 384)

…asonable has been the subject of differences of judicial opinion. [157] 157. Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75 at [232]; R v Dal [2005] QCA 281 at [2], [5]-[6], [21], [23], [32]-[33]; Pillay v R (2014) 43 VR 327; [2014] VSCA 249 at [30].…
Daaboul v R [2019] NSWCCA 191
Citation 7

…Clay (2016) 258 CLR 308; [2016] HCA 35 R v CBF [2012] QCA 294 R v CX [2006] QCA 409 R v DAL [2005] QCA 281 R v Formhals [2014] 1 WLR 2219 R v Garrett [2009] QCA 300 R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 R v R, GJ (2009) 105 SASR 506; [2009] SASC 371 R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151 SKA…
R v Harris [2019] QCA 154
Citation 8 (Para 4)

…lounge room, compared with a momentary incident of digital penetration. [6] Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 at 406; R v DAL [2005] QCA 281 at [8] and [23].…
Michael Leigh Crofts v The Queen [2018] VSCA 197
Citation 9 (Para 27)

…97 CLR 316, at 406, [232] per Callinan J; Millar v R [2003] WASCA 211, at [45] per McKechnie J; R v Kahu [2006] QCA 33, at [27] per Keane JA; R v DAL [2005] QCA 281, at [21] per Keane JA. Cf R v R, GJ (2009) 105 SASR 506, at 517, [32] per Kourakis J (‘ R, GJ’ ). (Citations as in original).…
R v NEOCLEOUS [2017] SASCFC 162
Citation 10

…[1996] HCA 35; R v James [1999] NSWCCA 191; R v AG [2000] NSWCCA 86; R v Markuleski (2001) 52 NSWLR 82; Millar v R [2003] WASCA 211; R v DAL [2005] QCA 281; R v Ritchie (2015) 12 VR 145; R v JK [2005] QCA 307; R v Kahu [2006] QCA 33; R v CX [2006] QCA 409; R v Garrett [2009] QCA 300; R v CBF [2012] QCA 294; R v…
R v Watson [2017] QCA 82
Citation 11 (Para 7)

…rce of legitimate complaint for the appellant.[12] [11]See eg. R v CX [2006] QCA 409 at [33] in particular Point 4 per Jerrard JA. [12] R v DAL [2005] QCA 281 at [6].…
R v Graham [2016] QCA 73
Citation 12 (Para 29)

…sistency between the verdict of acquittal on count 3 and his convictions on counts 1 and 2. [3] Osland v The Queen (1998) 197 CLR 316, 406; R v DAL [2005] QCA 281, [8] per McPherson JA, [23] per Keane JA.…
R v Laf [2015] QCA 130
Citation 13 (Para 1)

…the reliability of evidence germane to the counts on which it convicted in the same way that a verdict of acquittal might have done”.[16] [14][2005] QCA 281 at [8], [21]. [15](1998) 197 CLR 316 at 406 [232]. [16][2005] QCA 281 at [23].…
PA v R [2015] NSWCCA 18
Citation 14 (Para 26)

…The issue arose expressly in R v DAL [2005] QCA 281. There, McPherson JA said:…
Tukuafu v The Queen [2014] VSCA 345
Citation 15 (Para 1)

…facts.[20] The jury could properly have distinguished between EO’s evidence on charge 2 and her evidence on the other charges. [19]See DAL [2005] QCA 281, [25]. [20]Ibid [34].…
Pillay v The Queen [2014] VSCA 249
Citation 16 (Para 1)

…97 CLR 316, 406 [232] (Callinan J); Millar v The Queen [2003] WASCA 211, [45] (McKechnie J); R v Kahu [2006] QCA 33, [27] (Keane JA); R v DAL [2005] QCA 281, [21] (Keane JA). Cf R v R, GJ (2009) 105 SASR 506, 517 [32] (Kourakis J) (‘ R, GJ ’).…
R v Cahill [2014] QCA 208
Citation 17

…[18][2005] QCA 281; CA No 74 of 2005, 12 August 2005.…
R v FAE [2014] QCA 69
Citation 18 (Para 1)

…2 cannot be equated with verdicts of not guilty such as to give rise to an inconsistency with the guilty verdict on count 3.[2] [2]See R v DAL [2005] QCA 281 per Keane JA at [21] – [28] (McMurdo P agreeing).…
R v BCQ [2013] QCA 388
Citation 19 (Para 1)

…If a reasonable jury, applying their mind properly to the evidence, could have arrived at those verdicts, there is no inconsistency.[25] [24] R v DAL [2005] QCA 281 per Keane JA at [22]. [25] MacKenzie v The Queen (1996) 190 CLR 348 at 366.…
R v CBF [2012] QCA 294
Citation 20 (Para 1)

…prepared to find unanimously (or by majority) that the evidence did establish that the defendant was guilty beyond a reasonable doubt. [6] R v DAL [2005] QCA 281 at [5], [26] – [27]; R v JK [2005] QCA 307 at [22] – [25]; R v Kahu [2006] QCA 33 at [27]; R v Garrett [2009] QCA 300 at [35] – [37]. [7] R v DAL (supr…
R v TU [2009] QCA 386
Citation 21 (Para 1)

…ty verdicts on counts 1 and 3 and the acquittal for count 2. This may afford one way of demonstrating that a jury has acted unreasonably: see R v DAL [2005] QCA 281 at [22] per Keane JA. However the question of inconsistent verdicts is not simply a matter of saying that in a case where the convictions depend in l…
R v Garrett [2009] QCA 300
Citation 22 (Para 1)

…this respect significant: see Osland v The Queen (1998) 197 CLR 316 per Callinan J at 406; [1998] HCA 75 at [232]. As Keane JA pointed out in R v DAL [2005] QCA 281 at [23], a failure to agree about one count does not necessarily imply that the jury as a whole entertained a reasonable doubt about the reliability…
R v Dao [2007] QCA 372
Citation 23

…Keane JA referred to that same possibility, of merciful verdicts, in R v DAL [2005] QCA 281, at paragraphs [28]-[33]. The possibility of that being the explanation for the acquittals means that there is not the necessary sense of an affront to logic and common sense revealed by the different verdicts, and thereby…
R v Hussein and Hussein [2006] QCA 411
Citation 24

…) 197 CLR 316, cited R v Barclay [1999] QCA 457; CA No 272 of 1999, 3 December 1999, considered R v DAL [2005] QCA 281; CA No 74 of 2005, 12 August 2005, cited R v Gerrits (unrep., Williams, Ambrose and Cooper JJ, QCA, CA No 158 of 1991, 1192 of 1991, 4 October 1991), considered R v Mason and Saunders [1997] QCA…
R v CX [2006] QCA 409
Citation 25

…[2005] QCA 281; CA No 74 of 2005, 12 August 2005, cited COUNSEL: The appellant/applicant appeared on his own behalf R G Martin SC for the respondent SOLICITORS: The appellant/applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent…
R v Kahu [2006] QCA 33
Citation 26 (Para 1)

…hich no verdict was reached. [2] Osland v The Queen (1998) 197 CLR 316 at 356 - 357 [116]. [3] Osland v The Queen (1998) 197 CLR 316 at 406 [232]. [4][2005] QCA 281 at [2] - [8], [21] - [23].…
R v JK [2005] QCA 307
Citation 27 (Para 1)

…rdict on one count will only render a guilty verdict on another count unsafe if it discloses a miscarriage of justice. [2](1998) 197 CLR 316, 406. [3][2005] QCA 281; CA No 74 of 2005, 12 August 2005.…

See all citing cases →

Cases Cited

R v Charlesworth [2019] NSWDC 88
Citation 1 (Para 1)

…325) that, when the first trial had become abortive “by any means whatever”, it was not a bar to a second trial for the same offence. See also R v Charlesworth (1861) 1 B & S 460; 121 ER 786.…
R v Ritchie [2005] VSCA 166
Citation 2

…) 197 CLR 316, applied R v Charlesworth (1861) 1 B & S 460; 121 ER 786, cited R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82, cited R v Ritchie [2005] VSCA 166; No 238 of 2004, 29 June 2005, cited Re Mercy Catharine Newton (1849) 13 QB 716; 116 ER 1437, cited Winsor v The Queen (1866) LR 1 QB 289, considered…
R v MAL [2005] QCA 238
Citation 3 (Para 1)

…in my opinion, is that no obvious contradiction of the kind referred to by McHugh J in Osland can be said to arise in the present case. [5]Cf R v MAL [2005] QCA 238; CA No 36 of 2005, 28 June 2005 at [39].…
R v Smillie [2002] QCA 341
Citation 4 (Para 1)

…R v Markuleski [2001] NSWCCA 290 at [75] - [77], [226] - [229], [271], [324], [344]; (2001) 52 NSWLR 82 at 100 - 101, 129, 136, 145, 149; R v Smillie [2002] QCA 341 at [28] - [29]; (2002) 134 A Crim R 100 at 106 - 107.…
R v Markuleski [2001] NSWCCA 290
Citation 5 (Para 1)

…ed's misconduct.[6] [6] MacKenzie v The Queen (1996) 190 CLR 348 at 365 - 368; R v P [1999] QCA 411 at [30]; [2000] 2 Qd R 401 at 410; R v Markuleski [2001] NSWCCA 290 at [75] - [77], [226] - [229], [271], [324], [344]; (2001) 52 NSWLR 82 at 100 - 101, 129, 136, 145, 149; R v Smillie [2002] QCA 341 at [28] - [29]; (…
R v P [1999] QCA 411
Citation 6 (Para 1)

…view of the jury to reflect the overall criminality of the accused's misconduct.[6] [6] MacKenzie v The Queen (1996) 190 CLR 348 at 365 - 368; R v P [1999] QCA 411 at [30]; [2000] 2 Qd R 401 at 410; R v Markuleski [2001] NSWCCA 290 at [75] - [77], [226] - [229], [271], [324], [344]; (2001) 52 NSWLR 82 at 100 - 1…
Osland v The Queen [1998] HCA 75
Citation 7

…on some counts as a "merciful disagreement" Criminal Code 1899 (Qld), s 668E(1) MacKenzie v The Queen (1996) 190 CLR 348, applied Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316, applied R v Charlesworth (1861) 1 B & S 460; 121 ER 786, cited R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82, cited R v R…
Vincent Raymond Jones v The Queen [1997] HCA 56
Citation 8 (Para 1)

…charged to have arisen out of the incident indicates that they did not understand the task which they were required to perform. [1] Jones v The Queen (1997) 191 CLR 439 at 451.…
Jones v The Queen [1997] HCA 12
Citation 9 (Para 1)

…11 of the counts charged to have arisen out of the incident indicates that they did not understand the task which they were required to perform. [1] Jones v The Queen (1997) 191 CLR 439 at 451.…
Mackenzie v The Queen [1996] HCA 35
Citation 10 (Para 1)

…on a number of charges suffices in the view of the jury to reflect the overall criminality of the accused's misconduct.[6] [6] MacKenzie v The Queen (1996) 190 CLR 348 at 365 - 368; R v P [1999] QCA 411 at [30]; [2000] 2 Qd R 401 at 410; R v Markuleski [2001] NSWCCA 290 at [75] - [77], [226] - [229], [271], [324], […
Winsor v The Queen 1 QB 390
Citation 11 (Para 1)

…or relax it was accepted in the course of the 19 th century, first in Re Mercy Catharine Newton (1849) 13 QB 716; 116 ER 1437, and more decisively in Winsor v The Queen (1866) LR 1 QB 289, where the question was thoroughly reviewed by a strong Court of Queen’s Bench. The case was one in which Charlotte Winsor and Mary Harri…
Wu v The Queen 121 ER 786
Citation 12 (Para 1)

…become abortive “by any means whatever”, it was not a bar to a second trial for the same offence. See also R v Charlesworth (1861) 1 B & S 460; 121 ER 786.…
Winsor v The Queen 1 QB 289
Citation 13 (Para 1)

…he course of the 19 th century, first in Re Mercy Catharine Newton (1849) 13 QB 716; 116 ER 1437, and more decisively in Winsor v The Queen (1866) LR 1 QB 289, where the question was thoroughly reviewed by a strong Court of Queen’s Bench. The case was one in which Charlotte Winsor and Mary Harris were broug…
(1849) 13 QB 716 (1849) 13 QB 716
Citation 14 (Para 1)

…as extremely inconvenient, and the need to reconsider or relax it was accepted in the course of the 19 th century, first in Re Mercy Catharine Newton (1849) 13 QB 716; 116 ER 1437, and more decisively in Winsor v The Queen (1866) LR 1 QB 289, where the question was thoroughly reviewed by a strong Court of Queen’s B…
Winsor v The Queen 116 ER 1437
Citation 15 (Para 1)

…venient, and the need to reconsider or relax it was accepted in the course of the 19 th century, first in Re Mercy Catharine Newton (1849) 13 QB 716; 116 ER 1437, and more decisively in Winsor v The Queen (1866) LR 1 QB 289, where the question was thoroughly reviewed by a strong Court of Queen’s Bench. The cas…

Legislation Cited

No legislation cited in this judgment.

CITATION:	R v DAL [2005] QCA 281
PARTIES:	R v DAL (appellant)
FILE NO/S:	CA No 74 of 2005 DC No 80 of 2005 DC No 86 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	12 August 2005
DELIVERED AT:	Brisbane
HEARING DATE:	28 July 2005
JUDGES:	McMurdo P, McPherson and Keane JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders 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 - where appellant was charged with 23 counts arising out of his abduction and sexual abuse of two young female tourists - where the offences charged included multiple counts of deprivation of liberty, torture and rape - where appellant was convicted on eleven counts and acquitted on one count with the jury failing to return a verdict on the other eleven counts - where it was accepted that there was evidence on which the jury could have convicted in relation to each of the counts that was charged - where it was submitted that the "inconsistent verdicts" which eventuated suggested that the jury had acted unreasonably and had failed to properly understand their function - whether a failure to reach a verdict can be equated with an acquittal for the purposes of establishing "inconsistent verdicts" - whether there was a rational explanation for the jury returning a verdict in relation to some counts and not others - whether it was possible to explain the failure to convict on some counts as a "merciful disagreement" Criminal Code 1899 (Qld), s 668E(1) MacKenzie v The Queen (1996) 190 CLR 348, applied Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316, applied R v Charlesworth (1861) 1 B & S 460; 121 ER 786, cited R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82, cited R v Ritchie [2005] VSCA 166; No 238 of 2004, 29 June 2005, cited Re Mercy Catharine Newton (1849) 13 QB 716; 116 ER 1437, cited Winsor v The Queen (1866) LR 1 QB 289, considered
COUNSEL:	P J Callaghan SC for the appellant M J Copley for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent