SUPREME COURT OF QUEENSLAND
CITATION:
R v De Silva [2018] QCA 274
PARTIES:
R
v
DE SILVA, Neranjan Agrajith Kalubuth
(applicant/appellant)FILE NO/S:
CA No 177 of 2018
DC No 244 of 2018DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction & Sentence
ORIGINATING COURT:
District Court at Brisbane – Date of Conviction: 27 June 2018; Date of Sentence: 27 June 2018 (Farr SC DCJ)
DELIVERED ON:
16 October 2018
DELIVERED AT:
Brisbane
HEARING DATE:
28 September 2018
JUDGES:
Fraser and Gotterson and Morrison JJA
ORDERS:
1. Appeal against conviction dismissed.
2. Application for leave to appeal against sentence granted.
3. Appeal against sentence allowed.
4. The applicant’s sentence is set aside.
5. The applicant is sentenced on Count 2 to 18 months imprisonment, suspended after six months for an operational period of 18 months.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was acquitted of one count of rape and convicted of another count of rape against the same complainant – where the appellant neither gave nor called evidence at the trial – where the appellant’s account of events was contained in a recording of his police interview that was tendered by the prosecution – where, in summing up, the trial judge addressed the evidence of the appellant’s interview with police – where the appellant submits that the directions failed to distinguish between satisfaction beyond reasonable doubt and choosing between two contradictory stories – whether the trial judge’s failure to tell the jury that, even if they did not positively believe the appellant’s account, they could not find against him if his answers gave rise to a reasonable doubt, amounted to a miscarriage of justice
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the evidence was that the appellant had had a few drinks but that he was not intoxicated – where the trial judge invited the jury to consider whether intoxication may have affected the reliability of the appellant’s account of events and whether it may have explained behavioural disinhibition on his part – where the evidence was that the complainant was very intoxicated – whether the direction concerning intoxication distracted the jury from the issues in the case and deprived the appellant of a chance of acquittal that was fairly open
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant was sentenced to two years imprisonment, to be suspended after eight months, for an operational period of two years – where, as a direct result of being charged, the applicant spent six months in immigration detention after having been released on bail – where the date on which the applicant’s sentence was to be suspended was reduced by only four months for the six months he…
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- AGLC
- R v De Silva [2018] QCA 274
- Case
- [2018] QCA 274
- Decision Date
CaseChat Overview and Summary
The legal issues for the court to address included whether the trial judge's directions regarding the appellant's police interview evidence amounted to a misdirection or non-direction that resulted in a miscarriage of justice. Another issue was whether the trial judge's directions concerning intoxication distracted the jury from the key issues in the case and deprived the appellant of a fair chance of acquittal. Additionally, the court had to consider if the sentencing judge erred by not reducing the time the appellant was to spend in actual custody by the full period spent in immigration detention.
The court found that the trial judge's directions did not misdirect the jury, as they correctly explained the standard of proof and the onus on the prosecution. The court concluded that the directions on intoxication did not distract the jury from the main issues and did not result in a miscarriage of justice. Regarding the sentence, the court held that the sentencing judge erred in not reducing the operational period of the suspended sentence by the full period of immigration detention. Consequently, the appeal against conviction was dismissed, and the appeal against sentence was allowed, with the applicant's sentence being set aside and replaced with a new sentence of 18 months imprisonment, suspended after six months for an operational period of 18 months.
The final orders of the court were the dismissal of the appeal against conviction, the granting of leave to appeal against sentence, the allowance of the appeal against sentence, the setting aside of the applicant's original sentence, and the imposition of a new sentence of 18 months imprisonment, suspended after six months, for an operational period of 18 months.
Orders
Orders of the court
1. Appeal against conviction dismissed.
2. Application for leave to appeal against sentence granted.
3. Appeal against sentence allowed.
4. The applicant’s sentence is set aside.
5. The applicant is sentenced on Count 2 to 18 months imprisonment, suspended after six months for an operational period of 18 months.
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
As the prosecution had opened to the jury, DNA evidence was adduced in the Crown case. It was to the effect that the appellant’s DNA was not located on swabs taken from the complainant’s vulva and vaginal areas and her tampon.[13][13]Tr2-10 l23 – Tr2-11 l22.The course of the jury deliberations The summing up by the learned trial judge concluded at 12.45 pm on the second day of the trial. At 4.52 pm, the jury provided a note in which they asked for further clarification of reasonable doubt and a copy of the transcript of a part of the complainant’s evidence. They retired for the day at 4.57 pm. The trial resumed at 9.30 am on the following day. The learned trial judge addressed both questions, the latter by having his associate read a mutually agreed marked up copy of parts of the complainant’s evidence. The jury resumed deliberations at 10.04 am. At 10.58 am, they provided a note indicating that they were unable to reach a unanimous verdict on either count and that they felt that further deliberation would be futile. The jury returned at 11.00 am and learned trial judge gave them a “Black direction”. At 3.11 pm, they provided a further note which asked for Neil’s statement to be re-read and that certain parts of Olivia’s evidence be re-read to them. As his Honour was discussing this note with counsel, a yet further note arrived from the jury. It indicated that they had made a unanimous decision on Count 1, but not on Count 2. At 3.19 pm the jury returned. They indicated that they still required the evidence to be re-read. The acquittal verdict was taken on Count 1 and the evidence was then re-read. The jury retired at 3.40 pm. They returned at 4.29 pm and delivered the guilty verdict on Count 2.The grounds of appeal – conviction At the hearing of the appeal, the appellant was granted leave to amend his grounds of appeal against conviction to the following:1.A miscarriage of justice occurred by reason of the directions given as to how the jury should approach the evidence contained in the appellant’s interview with police.2.A miscarriage of justice occurred by reason of the directions given about intoxication.3.A miscarriage of justice occurred by reason of the failure by the learned trial judge to direct the jury as to the terms of section 24 of the Criminal Code. It is convenient to consider each ground of appeal separately.Ground 1 In summing up, the learned trial judge gave conventional directions to the jury with respect to the onus of proof and the standard of proof. It was for them to decide whether they were satisfied beyond reasonable doubt that the prosecution had proved the elements of each offence. If they were left with a reasonable doubt about guilt in respect of either charge, it was their duty to acquit in respect of that charge. The jury were told that the defendant was entitled to insist that the prosecution prove the case against him. That the defendant did not give evidence was not an admission of guilt; nor did it fill any gaps left in the prosecution evidence.[14][14]AB1 33-34.