SUPREME COURT OF QUEENSLAND
CITATION:
R v Dowden [2010] QCA 125
PARTIES:
R
v
DOWDEN, Mitchum Keith
(applicant/appellant)FILE NO/S:
CA No 280 of 2009
DC No 3096 of 2009
DC No 1321 of 2009DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction & Sentence
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
28 May 2010
DELIVERED AT:
Brisbane
HEARING DATE:
1 April 2010
JUDGES:
Holmes JA and Fryberg and Applegarth JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDERS:
1. Appeal against conviction dismissed
2. Application for leave to appeal against sentence allowed
3. The sentence imposed at first instance is set aside
4. A sentence of eight years imprisonment is substituted
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where appellant convicted of one count of rape – where only issue at trial was consent – where prosecutor put it to the jury that if the complainant’s account was false, as suggested by defence counsel in cross-examination and address, it must have been the product of deliberate lying – where prosecutor suggested that nothing in the defence case as put to the complainant explained the reason for the complainant’s distressed state following the incident – where appellant argued that the prosecutor’s observations effectively placed the onus of proof on the accused to demonstrate why the complainant would maintain a false allegation and to explain the complainant’s distressed state – whether the prosecutor’s observations amounted to a reversal of the onus of proof – whether a miscarriage of justice had occurred
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IRREGULARITIES IN RELATION TO JURY – PARTIALITY – where appellant in custody throughout the course of his trial – where appellant argued that there was a risk the jury had become aware that he was in custody – where there was no direct evidence to suggest that the jury was so aware – whether a miscarriage of justice had occurred
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF DEFENCE COUNSEL – where appellant argued that defence counsel had misled the jury by not properly putting the defendant’s case to the complainant – whether defence counsel acted for legitimate forensic reasons – whether a miscarriage of justice had occurred
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OF INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where evidence that the appellant’s spermatozoa was found in the complainant’s vagina – where only issue at trial was consent – where complainant a witness of credit – where jury entitled to accept the evidence of the complainant – whether the finding of guilt was open to the jury
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where appellant sentenced to nine years imprisonment for one count of rape…
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- AGLC
- R v Dowden [2010] QCA 125
- Case
- [2010] QCA 125
- Decision Date
CaseChat Overview and Summary
The court examined whether the prosecutor's comments constituted a reversal of the onus of proof, noting that the onus remains with the prosecution to prove guilt beyond reasonable doubt. The court concluded that the prosecutor's remarks did not shift the onus of proof onto the appellant. Regarding the potential partiality of the jury, the court found no direct evidence to suggest that the jury was aware of the appellant's custodial status and thus found no miscarriage of justice on this ground. The court also considered the conduct of the defence counsel, determining that any deficiencies were within the bounds of legitimate forensic strategy and did not prejudice the appellant's case. The court further held that the jury was entitled to accept the complainant's evidence as credible and that the finding of guilt was open to them based on the evidence presented.
Given the evidence of the appellant's spermatozoa found in the complainant's vagina, the court concluded that the conviction was supported by the evidence and dismissed the appeal against conviction. However, the court allowed the appeal against the sentence, finding it manifestly excessive. The original sentence of nine years imprisonment was set aside, and a sentence of eight years imprisonment was substituted. The court noted that the original sentence was excessive considering factors such as the appellant being a stranger to the complainant, the relatively harmless weapon used, the absence of significant violence, and the lack of threats of harm or retribution. The appeal against sentence was thus allowed, and the sentence imposed at first instance was set aside, with an eight-year imprisonment sentence substituted in its place.
Orders
Orders of the court
1. Appeal against conviction dismissed
2. Application for leave to appeal against sentence allowed
3. The sentence imposed at first instance is set aside
4. A sentence of eight years imprisonment is substituted
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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