R v Danine - [2004] QCA 102

SUPREME COURT OF QUEENSLAND

CITATION:

R v Danine [2004] QCA 102

PARTIES:

R
v
DANINE, Ashir

(appellant)

FILE NO/S:

CA No 323 of 2003

DC No 615 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

8 April 2004

DELIVERED AT:

Brisbane

HEARING DATE:

25 March 2004

JUDGES:

McPherson JA, Williams JA and Philippides J

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal against convictions dismissed

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – CORROBORATION – whether trial judge erred by directing the jury that the medical evidence, that was admitted or not contested by the appellant, was capable of constituting corroboration of complainant’s evidence

CRIMINAL LAW – EVIDENCE – EVIDENCE OF SEXUAL EXPERIENCE, REPUTATION AND MORALITY – whether if, in a rape trial, the complainant gives evidence of virginity to establish good character the defence is entitled to leave to cross-examine her on sexual conduct occurring some months after the acts complained of

Criminal Law (Sexual Offences) Act 1978 (Qld), s 4

R v Allingham [1991] 1 Qd R 429, considered
R v Barrow [2001] 1 Qd R 525, applied
R v Baskerville [1916] 2 KB 658, applied
R v Berrill [1982] Qd R 508, applied
R v Kerim [1988] 1 Qd R 426, referred to

R v McK [1986] 1 Qd R 476, applied

COUNSEL:

A J Rafter SC for the appellant

D L Meredith for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant

Director of Public Prosecutions (Queensland) for the respondent

McPHERSON JA: This is an appeal against conviction at a trial on an indictment in the District Court charging three counts of rape alleged to have been committed upon the complainant on 22 February 2002. Ground 1(a) in the notice of appeal having been abandoned, the grounds of appeal as amended are now that: (b) the trial judge erred in not giving leave under s 4 of the Criminal Law (Sexual Offences) Act 1978 to cross-examine the complainant about other sexual activity; (c) that the judge was wrong in directing the jury that medical evidence concerning injuries to the complainant’s vagina was capable of supporting her testimony; and (d) that the verdicts of the jury were unreasonable.

In 2002 the complainant was a 16 year old student attending a suburban high school. She had a disagreement with her mother, as a result of which she went to stay in a caravan at her grandmother’s house, where a 14 year old school friend Joanna was also staying. On Friday 22 February, the two of them were collected in a motor vehicle by Jamie Anne, who was also a student at the school. They were planning to go to the coast late in the day, but in the course of the afternoon met the appellant, then aged 26, whom Joanna appeared to know. The group, which by then included Shane, another student from the school, decided to…

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 Danine

Details

AGLC: R v Danine [2004] QCA 102
Case: [2004] QCA 102
Decision Date: 8 April 2004

CaseChat Overview and Summary

In the matter of R v Danine, the appellant was convicted of raping a woman and was sentenced to imprisonment. The appellant appealed against his convictions on several grounds, one of which was that the trial judge erred by directing the jury that the medical evidence, admitted or not contested by the appellant, was capable of constituting corroboration of the complainant’s evidence. The appellant contended that the medical evidence was not capable of corroborating the complainant’s evidence as it did not provide independent evidence of the commission of the offence. The appellant further contended that the trial judge erred in his direction to the jury that evidence of the complainant’s sexual experience was admissible.

The court considered whether the trial judge erred by directing the jury that the medical evidence was capable of corroborating the complainant’s evidence. The court held that the trial judge did not err in directing the jury that the medical evidence was capable of corroborating the complainant’s evidence. The court held that the medical evidence was capable of corroborating the complainant’s evidence as it provided independent evidence of the commission of the offence. The court also considered whether the trial judge erred in his direction to the jury that evidence of the complainant’s sexual experience was admissible. The court held that the trial judge did not err in his direction to the jury that evidence of the complainant’s sexual experience was admissible as it was relevant to the complainant’s credibility.

The appeal against the convictions was dismissed. The court held that the trial judge did not err in directing the jury that the medical evidence was capable of corroborating the complainant’s evidence and that evidence of the complainant’s sexual experience was admissible. The court held that the appellant’s convictions were safe and the appeal against the convictions was dismissed.

Orders

Orders of the court

Appeal against convictions dismissed

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 Danine [2004] QCA 102
PARTIES:	R v DANINE, Ashir (appellant)
FILE NO/S:	CA No 323 of 2003 DC No 615 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	8 April 2004
DELIVERED AT:	Brisbane
HEARING DATE:	25 March 2004
JUDGES:	McPherson JA, Williams JA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal against convictions dismissed
CATCHWORDS:	CRIMINAL LAW – EVIDENCE – CORROBORATION – whether trial judge erred by directing the jury that the medical evidence, that was admitted or not contested by the appellant, was capable of constituting corroboration of complainant’s evidence CRIMINAL LAW – EVIDENCE – EVIDENCE OF SEXUAL EXPERIENCE, REPUTATION AND MORALITY – whether if, in a rape trial, the complainant gives evidence of virginity to establish good character the defence is entitled to leave to cross-examine her on sexual conduct occurring some months after the acts complained of Criminal Law (Sexual Offences) Act 1978 (Qld), s 4 R v Allingham [1991] 1 Qd R 429, considered R v Barrow [2001] 1 Qd R 525, applied R v Baskerville [1916] 2 KB 658, applied R v Berrill [1982] Qd R 508, applied R v Kerim [1988] 1 Qd R 426, referred to R v McK [1986] 1 Qd R 476, applied
COUNSEL:	A J Rafter SC for the appellant D L Meredith for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent