R v Dally - [2009] QCA 171

SUPREME COURT OF QUEENSLAND

CITATION:

R v Dally [2009] QCA 171

PARTIES:

R
v
DALLY, Darrell Michael
(appellant)

FILE NO/S:

CA No 272 of 2008
DC No 510 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

16 June 2009

DELIVERED AT:

Brisbane

HEARING DATE:

16 June 2009

JUDGES:

Keane and Muir JJA and Fryberg J
Separate reasons for judgment of each member of the Court, Keane and Muir JJA concurring as to the orders made, Fryberg J dissenting

ORDERS:

1. Appeal allowed and convictions set aside

2. Verdicts of acquittal be entered in respect of each count on the indictment

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR UNSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where appellant convicted by jury of common assault, deprivation of liberty and rape – where evidence of complainant inconsistent with the evidence of independent witnesses – whether inconsistency gives rise to reasonable doubt as to appellant's guilt

R v Thaiday [2009] QCA 27, cited

COUNSEL:

M J Byrne QC, with H A Walters, for the appellant
M B Lehane for the respondent

SOLICITORS:

Lee Turnbull & Co for the appellant
Director of Public Prosecutions (Queensland) for the respondent

KEANE JA: On 26 September 2008 the appellant was convicted upon the verdict of a jury of one count of common assault, one count of deprivation of liberty and three counts of rape. He was sentenced to six and a half years imprisonment on each of two counts of rape and to less concurrent terms in respect of the other offences.

The appellant seeks to have the conviction set aside on a number of grounds. As one of those grounds involves the contention that the verdict of the jury should be set aside because no reasonable jury could be satisfied on the whole of the evidence of the appellant's guilt beyond reasonable doubt, it is convenient to summarise at the outset the evidence adduced at trial before moving to a discussion of the grounds of appeal.

The case at trial. The charges against the appellant arose out of incidents which occurred on 23 and 24 June 2007 at the Club Hotel in Croydon.

The complainant was a Canadian backpacker who was working as a waitress at the Club Hotel. She was 19 years old. The appellant was a licensed security provider who had been hired by hotel management for the weekend of the Poddy Dodgers Festival on 21 to 23 June 2007.

During the 10 days prior to 23 June, the complainant had been sharing her donga at the hotel with Mr Nelson Finch. Mr Finch gave evidence that on the evening of Friday 24 June the complainant and others were drinking until 4.30 am on the Saturday. Mr Finch and the complainant woke at about 6.30 to 7.30 am and in the afternoon drank beer and smoked marijuana together.

According to the complainant, she met the appellant at 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 Dally

Details

AGLC: R v Dally [2009] QCA 171
Case: [2009] QCA 171
Decision Date: 16 June 2009

CaseChat Overview and Summary

The appellant, Dally, appealed against his convictions for common assault, deprivation of liberty, and rape. The jury returned guilty verdicts, but Dally argued that the verdicts were unreasonable and unsupportable in light of the evidence presented. The appeal was heard by the court, which considered whether the inconsistencies in the complainant's evidence, when compared to the independent witnesses, created a reasonable doubt regarding Dally's guilt. The court's task was to assess whether the jury's decision could be considered unreasonable in light of the evidence and whether the appeal should be allowed, resulting in the convictions being set aside.

The primary legal issue the court had to address was whether the inconsistencies in the complainant's evidence, when juxtaposed with the evidence of independent witnesses, were significant enough to cast a reasonable doubt on Dally's guilt. The court had to determine whether the jury's decision was unreasonable, given the conflicting testimonies and whether this warranted allowing the appeal and setting aside the convictions. The court also considered whether the evidence presented was such that no reasonable tribunal could have found Dally guilty beyond a reasonable doubt.

The court found that the inconsistencies in the complainant's evidence, particularly when compared to the evidence of independent witnesses, were substantial enough to create a reasonable doubt regarding Dally's guilt. The court concluded that the jury's decision was unreasonable in light of the conflicting evidence and granted the appeal. As a result, the convictions were set aside, and the verdicts of acquittal were to be entered in respect of each count on the indictment. The court emphasised that the evidence presented was not of a nature that any reasonable tribunal could have found Dally guilty beyond a reasonable doubt.

Orders

Orders of the court

1. Appeal allowed and convictions set aside

2. Verdicts of acquittal be entered in respect of each count 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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CITATION:	R v Dally [2009] QCA 171
PARTIES:	R v DALLY, Darrell Michael (appellant)
FILE NO/S:	CA No 272 of 2008 DC No 510 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	16 June 2009
DELIVERED AT:	Brisbane
HEARING DATE:	16 June 2009
JUDGES:	Keane and Muir JJA and Fryberg J Separate reasons for judgment of each member of the Court, Keane and Muir JJA concurring as to the orders made, Fryberg J dissenting
ORDERS:	1. Appeal allowed and convictions set aside 2. Verdicts of acquittal be entered in respect of each count on the indictment
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR UNSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where appellant convicted by jury of common assault, deprivation of liberty and rape – where evidence of complainant inconsistent with the evidence of independent witnesses – whether inconsistency gives rise to reasonable doubt as to appellant's guilt R v Thaiday [2009] QCA 27, cited
COUNSEL:	M J Byrne QC, with H A Walters, for the appellant M B Lehane for the respondent
SOLICITORS:	Lee Turnbull & Co for the appellant Director of Public Prosecutions (Queensland) for the respondent