R v Draper

Case [2015] QCA 66

SUPREME COURT OF QUEENSLAND

CITATION:

R v Draper [2015] QCA 66

PARTIES:

R
v
DRAPER, Lawrence Anthony
(appellant)

FILE NO/S:

CA No 169 of 2014
DC No 14 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:


District Court at Bowen

DELIVERED ON:

24 April 2015

DELIVERED AT:

Brisbane

HEARING DATE:

11 February 2015

JUDGES:

Margaret McMurdo P and Gotterson and Morrison JJA
Separate reasons for judgment of each member of the Court, Gotterson and Morrison JJA concurring as to the order made, Margaret McMurdo P dissenting

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – PRESENTATION OF CROWN CASE – where the appellant was convicted of one count of unlawful and indecent assault, an offence against s 352(1)(a) of the Criminal Code (Count 1) – where the appellant was acquitted of one count of rape on the same indictment (Count 2) – where the appellant was sentenced to 12 months’ imprisonment wholly suspended for an operational period of two years – where the complainant was a South Korean national in her very early twenties, living and working in Australia on a working visa – where the appellant was an Australian national who, at the time, was 57 years old – where the appellant admitted to picking up the complainant in his Toyota Hilux and going driving but initially denied the alleged conduct, then suggested through defence counsel’s questions of the complainant in cross-examination that the sexual contact was initiated by the complainant – where the appellant did not testify at trial – where the prosecution was permitted to make evidential use of propositions put to the complainant during cross-examination – whether the trial judge erred in permitting the use of such propositions

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – EFFECT OF MISDIRECTION OR NON-DIRECTION – where a Zoneff direction was not given to warn the jury against the danger of misusing questions put by defence counsel to the complainant in cross-examination as an indication that the appellant lied in his interview with police – whether the trial judge erred in failing to give a Zoneff direction

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE – GENERAL PRINCIPLES – where the prosecution opened its case on the basis that DNA evidence linking the appellant to a swab taken from the complainant’s bra would be led – where on the third day of the trial the DNA evidence was excluded in consequence of the prosecution’s failure to prove the continuity of the exhibits from which the DNA was extracted – where the trial judge did not discharge the jury when DNA evidence of which they were already aware was excluded – whether a substantial miscarriage of justice arose

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the verdicts arose from one source…

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AGLC
R v Draper [2015] QCA 66
Case
[2015] QCA 66
Decision Date

CaseChat Overview and Summary

The appellant, Draper, appealed his conviction and sentence for unlawful and indecent assault, contending that the trial judge made several errors that resulted in a miscarriage of justice. The appellant was acquitted of a charge of rape against the same complainant, a South Korean national living and working in Australia. The trial judge permitted the prosecution to make evidential use of propositions put to the complainant during cross-examination and failed to give a Zoneff direction to the jury. The trial judge also did not discharge the jury when DNA evidence was excluded and allowed the jury to return an inconsistent verdict. The appellant contended that the verdict of guilty was unreasonable and that Count 1 was duplicitous.

The court considered whether the trial judge erred in permitting the use of propositions put to the complainant during cross-examination and failing to give a Zoneff direction. The court held that the trial judge did not err in permitting the use of such propositions and did not err in failing to give a Zoneff direction. The court found that the exclusion of DNA evidence did not result in a substantial miscarriage of justice and that the jury's inconsistent verdict was not unreasonable. The court held that the verdict of guilty on Count 1 was open to the jury based on the whole of the evidence, including the complainant's unequivocal evidence that the appellant touched her breasts with his hand. The court found that there was no latent ambiguity in Count 1 and that it was not duplicitous.

The court dismissed the appeal and held that no substantial miscarriage of justice arose. The court found that the trial judge's errors, if any, did not affect the safety of the appellant's conviction. The court held that the appellant's conviction and sentence for unlawful and indecent assault was safe and that the appeal should be dismissed.

The court dismissed the appeal and affirmed the conviction and sentence of the appellant.

Orders

Orders of the court

Appeal dismissed.

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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