R v di Pino - [2004] QCA 39

SUPREME COURT OF QUEENSLAND

CITATION:

R v di Pino [2004] QCA 39

PARTIES:

R
v
DI PINO, Constantino
(appellant)

FILE NO/S:

CA No 401 of 2003
DC No 1927 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

20 February 2004

DELIVERED AT:

Brisbane

HEARING DATE:

20 February 2004

JUDGES:

de Jersey CJ, Williams JA and Mackenzie J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Quash the conviction on count 1

2.   Set aside the penalty imposed in respect of count 1

3.   Enter a verdict and judgment of acquittal on count 1

4.   In respect of count 4, dismiss the appeal against conviction, extend time as necessary to allow a grant of leave to appeal against sentence imposed in respect of that count

5.   Allow the appeal against sentence

6.   Set aside the penalty imposed in respect of count 4 on 11 December 2003. In respect of that count sentence the appellant to the period of imprisonment he has already served, namely, two months and 11 days

7.   Order that the appellant be released from custody forthwith

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – OTHER OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – BUGGERY AND INDECENT ASSAULT OR DEALING – GENERALLY – where appellant convicted on two counts of unlawfully and indecently dealing with female complainants – whether the differing verdicts are irreconcilable – whether the verdicts of guilty are unsafe – whether the jury should have been directed to take reasonable doubt in respect of the complainant’s evidence into consideration in an assessment of the complainant’s credibility

R v Markuleski (2001) 52 NSWLR 82, considered
R v M [2001] QCA 458; CA No 126 of 2001, 26 October 2001, considered

COUNSEL:

C Chowdhury for the appellant
M J Copley for the respondent

SOLICITORS:

John P Bussa & Co for the appellant
Director of Public Prosecutions (Queensland) for the respondent

THE CHIEF JUSTICE: The appellant was convicted on two counts of unlawfully and indecently dealing with female complainants. I will term the complainants A and B.

The offences occurred in January 2002 when A was 13 years old and B 10 years. The appellant was arraigned on six counts in all, three concerning each complainant. And he was acquitted on the remaining four counts.

The counts on which he was convicted were Count 1 in relation to B and Count 4 in relation to A. He appeals on the ground that the differing verdicts are irreconcilable, that the verdicts of guilty are unsafe, and that the jury should have been directed that they should take a reasonable doubt in respect of the complainant's evidence on one count into consideration in an assessment of the complainant's credibility generally.

See The Queen v. Markuleski (2001) 52 New South Wales Law Reports 82 and The Queen v. M [2001] Queensland Court of Appeal 458.

The offences occurred…

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 di Pino

Details

AGLC: R v di Pino [2004] QCA 39
Case: [2004] QCA 39
Decision Date: 20 February 2004

CaseChat Overview and Summary

The case of R v di Pino involved the appellant, who was convicted on two counts of unlawfully and indecently dealing with female complainants. The Court of Appeal was tasked with determining whether the differing verdicts were irreconcilable, the safety of the verdicts of guilty, and whether the jury should have been directed to consider reasonable doubt in respect of the complainant's evidence in assessing her credibility. The appellant challenged his conviction and sentence, arguing that the jury should have been directed to take reasonable doubt into account when assessing the credibility of the complainant's evidence. The Court of Appeal examined whether the jury's verdicts were irreconcilable, considering the differing verdicts on counts 1 and 4. The court held that the verdicts were not irreconcilable as the jury could have found the complainant's evidence on count 1 not proven beyond reasonable doubt, but still believed her account on count 4.

The Court of Appeal also examined whether the verdicts of guilty were unsafe and whether the jury should have been directed to take reasonable doubt into account when assessing the complainant's credibility. The court found that the verdicts were not unsafe, as the jury had been properly directed on the assessment of the complainant's credibility. The court held that there was no error in the trial judge's directions to the jury, and that the jury was properly directed to consider the credibility of the complainant's evidence in light of the reasonable doubt standard. The Court of Appeal dismissed the appeal against conviction on count 4, but allowed the appeal against sentence, setting aside the penalty imposed on that count and ordering the appellant to be released from custody forthwith.

Orders

Orders of the court

1. Quash the conviction on count 1

2. Set aside the penalty imposed in respect of count 1

3. Enter a verdict and judgment of acquittal on count 1

4. In respect of count 4, dismiss the appeal against conviction, extend time as necessary to allow a grant of leave to appeal against sentence imposed in respect of that count

5. Allow the appeal against sentence

6. Set aside the penalty imposed in respect of count 4 on 11 December 2003. In respect of that count sentence the appellant to the period of imprisonment he has already served, namely, two months and 11 days

7. Order that the appellant be released from custody forthwith

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 di Pino [2004] QCA 39
PARTIES:	R v DI PINO, Constantino (appellant)
FILE NO/S:	CA No 401 of 2003 DC No 1927 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	20 February 2004
DELIVERED AT:	Brisbane
HEARING DATE:	20 February 2004
JUDGES:	de Jersey CJ, Williams JA and Mackenzie J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Quash the conviction on count 1 2. Set aside the penalty imposed in respect of count 1 3. Enter a verdict and judgment of acquittal on count 1 4. In respect of count 4, dismiss the appeal against conviction, extend time as necessary to allow a grant of leave to appeal against sentence imposed in respect of that count 5. Allow the appeal against sentence 6. Set aside the penalty imposed in respect of count 4 on 11 December 2003. In respect of that count sentence the appellant to the period of imprisonment he has already served, namely, two months and 11 days 7. Order that the appellant be released from custody forthwith
CATCHWORDS:	CRIMINAL LAW – PARTICULAR OFFENCES – OTHER OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – BUGGERY AND INDECENT ASSAULT OR DEALING – GENERALLY – where appellant convicted on two counts of unlawfully and indecently dealing with female complainants – whether the differing verdicts are irreconcilable – whether the verdicts of guilty are unsafe – whether the jury should have been directed to take reasonable doubt in respect of the complainant’s evidence into consideration in an assessment of the complainant’s credibility R v Markuleski (2001) 52 NSWLR 82, considered R v M [2001] QCA 458; CA No 126 of 2001, 26 October 2001, considered
COUNSEL:	C Chowdhury for the appellant M J Copley for the respondent
SOLICITORS:	John P Bussa & Co for the appellant Director of Public Prosecutions (Queensland) for the respondent