R v Dax

Case [2010] QCA 221

SUPREME COURT OF QUEENSLAND

CITATION:

R v DAX [2010] QCA 221

PARTIES:

R
v
DAX
(applicant/appellant)

FILE NO/S:

CA No 310 of 2009
DC No 2116 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:


District Court at Brisbane

DELIVERED ON:

24 August 2010

DELIVERED AT:

Brisbane

HEARING DATE:

14 May 2010

JUDGES:

Holmes and Fraser and White JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    Allow the appeal and set aside the conviction on count 3;

2.    A verdict of acquittal is entered on count 3;

3.    Otherwise dismiss the appeal.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE – GENERAL PRINCIPLES – where in closing the prosecutor asked the jury to accept the evidence of the complainant and reject the s 93A evidence of A and B due to inconsistencies with earlier police statements – where the prosecutor’s comments impugned the credibility of A and B and suggested B’s evidence may have been influenced by another person – whether the prosecutor’s comments improperly influenced the jury so as to cause a miscarriage of justice – whether the prosecutor’s conduct denied the appellant procedural fairness

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where the appellant was convicted of unlawfully procuring the complainant to commit an indecent act – where the Crown relied on the complainant’s evidence  and the verdict was sustainable on that evidence – where the evidence did not support the count as confined by the Crown particulars – whether the verdict was unreasonable

Evidence Act 1977 (Qld), s 9E, s 17, s 21AK, s 93A

Causevic v R (2008) 190 A Crim R 416; [2008] NSWCCA 238, cited
GDD v R; NJC v R [2010] NSWCCA 62, cited
R v Andrews [2010] SASCFC 5, cited
R v Colquhoun [2009] SASC 138, cited
R vGoncalves (1997) 99 A Crim R 193, cited
R v Kennedy (2000) 118 A Crim R 34; [2000] NSWCCA 487, cited
R v Livermore (2006) 67 NSWLR 659; [2006] NSWCCA 334, discussed
R v Macfie (No 2) (2004) 11 VR 215; [2004] VSCA 209, cited
R v Mark & Elmazovski [2006] VSCA 251, cited
R v Smith (2007) 179 A Crim R 453; [2007] QCA 447, applied
R v Welden (1977) 16 SASR 421, cited
Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, cited

COUNSEL:

H Fong for the applicant/appellant
M J Copley SC for the respondent

SOLICITORS:

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

  1. HOLMES JA:I agree with the reasons of Fraser JA and with the orders he proposes.

  1. FRASER JA: On 19 November 2009 the appellant was found guilty by a jury…

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AGLC
R v DAX [2010] QCA 221
Case
[2010] QCA 221
Decision Date

CaseChat Overview and Summary

The appeal in R v Dax concerned the conviction of the appellant, Dax, on count 3, which alleged the unlawful procurement of an indecent act by the complainant. The issue was whether the trial judge should have declared a miscarriage of justice or whether the verdict was unreasonable or unsustainable when considering the evidence presented. The Court of Appeal also examined whether the prosecutor's comments during the trial improperly influenced the jury and denied Dax procedural fairness.

The central legal issues revolved around whether the prosecutor's remarks about the credibility of witnesses A and B, along with the suggestion that B's evidence might have been influenced by another person, improperly swayed the jury, thereby causing a miscarriage of justice. Additionally, the Court considered whether the verdict was unreasonable or unsustainable given the evidence, particularly since the Crown's case relied solely on the complainant's evidence, which was corroborated by the evidence presented. The Court also needed to determine if the conviction on count 3 was supported by the evidence as outlined in the Crown particulars.

The Court of Appeal held that the prosecutor's comments did not improperly influence the jury to such an extent as to cause a miscarriage of justice. The comments were seen as legitimate challenges to the credibility of the witnesses and did not deny Dax procedural fairness. Furthermore, the Court found that the verdict was sustainable based on the complainant's evidence, even though the evidence did not fully align with the particulars of count 3. Consequently, the appeal was allowed in part, and the conviction on count 3 was set aside with an acquittal entered in its place. The remainder of the appeal was dismissed.

ORDERS:
1. Allow the appeal and set aside the conviction on count 3;
2. A verdict of acquittal is entered on count 3;
3. Otherwise dismiss the appeal.

Orders

Orders of the court

1. Allow the appeal and set aside the conviction on count 3;

2. A verdict of acquittal is entered on count 3;

3. Otherwise dismiss the appeal.

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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