R v Dargin - [2013] QCA 20

SUPREME COURT OF QUEENSLAND

CITATION:

R v Dargin [2013] QCA 20

PARTIES:

R
v
DARGIN, Clifford James
(appellant/applicant)

FILE NO/S:

CA No 83 of 2012
DC No 2006 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED ON:

15 February 2013

DELIVERED AT:

Brisbane

HEARING DATE:

7 February 2013

JUDGES:

Chief Justice, Holmes and Gotterson JJA
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 – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF DEFENCE COUNSEL – where the appellant was convicted on two counts of rape with respect to the first complainant and six counts of rape with respect to the second – where the appellant contends that his counsel failed to cross-examine the two complainants with sufficient rigour – where the only issue at trial was identification and neither complainant purported to identify the appellant – where the appellant contended, in addition, that counsel failed to draw out features going to his whereabouts at the time of the offences – where nothing in the appellant's record of interview or examination-in-chief suggests that he could have given further evidence – whether any basis for complaint of counsel's approach

CRIMINAL LAW – PROCEDURE – WITNESSES – POWERS OF JUDGE – GENERALLY – where the appellant was convicted on two counts of rape with respect to the first complainant and six counts of rape with respect to the second – where the appellant submitted that the two rape complainants should not have been treated as special witnesses and that his counsel should have objected to the procedure – where the trial judge found that each complainant met the definition of a special witness in s 21A of the Evidence Act 1977 – where the appellant identified no basis for his contention to the contrary – whether any disadvantage to the appellant in having the complainants treated as special witnesses

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – JOINDER – JOINT TRIAL – where the appellant was convicted on two counts of rape with respect to the first complainant and six counts of rape with respect to the second – where at trial, the appellant argued there was not a sufficient nexus between the two sets of rapes to justify their joinder – where counsel for the appellant sought the quashing of the indictment and an order for separate trials – where the appellant contended that evidence on counts 1 and 2 was not admissible in proof of counts 3 to 8 because it did not meet the test in Pfennig – where the appellant submitted he would be prejudiced if the counts were tried together – where the trial judge identified a number of strikingly similar features between the rapes including the finding in each…

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 Dargin

Details

AGLC: R v Dargin [2013] QCA 20
Case: [2013] QCA 20
Decision Date: 15 February 2013

CaseChat Overview and Summary

The appellant, R, was convicted on two counts of rape with respect to the first complainant and six counts of rape with respect to the second. The issues for determination by the court included whether the appellant's counsel had been deficient in not cross-examining the complainants more rigorously, not challenging their status as special witnesses, and not objecting to the joinder of the counts. The appellant also sought leave to appeal against his sentence on two counts of digital rape. The court found that counsel's approach was appropriate given the nature of the evidence presented and the absence of any identifiable benefit from more rigorous cross-examination. The court also found that the complainants were properly classified as special witnesses and that there was a sufficient nexus between the offences to justify their joinder. Finally, the court found that the sentences imposed were not manifestly excessive, taking into account the brutality of the offences, their gravity, the consequences for the victims, and the appellant's criminal history.

The court began by considering the appellant's arguments regarding his counsel's conduct during the trial. The court found that counsel's decision not to cross-examine the complainants more rigorously was not unreasonable, as the only issue at trial was identification and neither complainant purported to identify the appellant. The court also found that counsel's decision not to object to the complainants being treated as special witnesses was not unreasonable, as the trial judge had correctly found that each complainant met the definition of a special witness in section 21A of the Evidence Act 1977. The court then considered the appellant's arguments regarding the joinder of the counts, finding that the trial judge had correctly identified a number of strikingly similar features between the rapes and that there was a sufficient nexus between them to justify their joinder. Finally, the court considered the appellant's arguments regarding his sentence, finding that the sentences imposed were not manifestly excessive, taking into account the brutality of the offences, their gravity, the consequences for the victims, and the appellant's criminal history.

The orders of the court were that the appeal against conviction be dismissed and that the application for leave to appeal against sentence be refused. The court found that there was no basis for complaint about the conduct of the appellant's counsel, that the complainants were properly classified as special witnesses, that there was a sufficient nexus between the offences to justify their joinder, and that the sentences imposed were not manifestly excessive. The appellant's appeal against conviction was therefore dismissed, and his application for leave to appeal against sentence was refused.

Orders

Orders of the court

1. Appeal against conviction dismissed.

2. Application for leave to appeal against sentence refused.

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 Dargin [2013] QCA 20
PARTIES:	R v DARGIN, Clifford James (appellant/applicant)
FILE NO/S:	CA No 83 of 2012 DC No 2006 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Beenleigh
DELIVERED ON:	15 February 2013
DELIVERED AT:	Brisbane
HEARING DATE:	7 February 2013
JUDGES:	Chief Justice, Holmes and Gotterson JJA 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 – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF DEFENCE COUNSEL – where the appellant was convicted on two counts of rape with respect to the first complainant and six counts of rape with respect to the second – where the appellant contends that his counsel failed to cross-examine the two complainants with sufficient rigour – where the only issue at trial was identification and neither complainant purported to identify the appellant – where the appellant contended, in addition, that counsel failed to draw out features going to his whereabouts at the time of the offences – where nothing in the appellant's record of interview or examination-in-chief suggests that he could have given further evidence – whether any basis for complaint of counsel's approach CRIMINAL LAW – PROCEDURE – WITNESSES – POWERS OF JUDGE – GENERALLY – where the appellant was convicted on two counts of rape with respect to the first complainant and six counts of rape with respect to the second – where the appellant submitted that the two rape complainants should not have been treated as special witnesses and that his counsel should have objected to the procedure – where the trial judge found that each complainant met the definition of a special witness in s 21A of the Evidence Act 1977 – where the appellant identified no basis for his contention to the contrary – whether any disadvantage to the appellant in having the complainants treated as special witnesses CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – JOINDER – JOINT TRIAL – where the appellant was convicted on two counts of rape with respect to the first complainant and six counts of rape with respect to the second – where at trial, the appellant argued there was not a sufficient nexus between the two sets of rapes to justify their joinder – where counsel for the appellant sought the quashing of the indictment and an order for separate trials – where the appellant contended that evidence on counts 1 and 2 was not admissible in proof of counts 3 to 8 because it did not meet the test in Pfennig – where the appellant submitted he would be prejudiced if the counts were tried together – where the trial judge identified a number of strikingly similar features between the rapes including the finding in each…