R v Dunrobin - [2013] QCA 175

SUPREME COURT OF QUEENSLAND

CITATION:

R v Dunrobin [2013] QCA 175

PARTIES:

R
v
DUNROBIN, Shannon Robert
(appellant/applicant)

FILE NO/S:

CA No 275 of 2011
DC No 80 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Bundaberg

DELIVERED ON:

12 July 2013

DELIVERED AT:

Brisbane

HEARING DATE:

9 May 2013

JUDGES:

Muir and Gotterson JJA and Boddice J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal be allowed.

2. Convictions in respect of counts 1, 2, 4, 6 and 7 be set aside.

3. New trial ordered in respect of counts 1, 2, 4, 6 and 7.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – OTHER MATTERS – where the appellant was convicted on count 3 of the indictment where no evidence had been given in support of that count – where the appellant contends the verdict on count 3 without evidence compromised all other verdicts such as to constitute a “poisoned well” – where the appellant gave evidence of sexual contact in respect of each of the remaining counts of rape – where the complainant’s evidence involved assertions of acts of intercourse in circumstances where any consent was obtained through fear or intimidation, including physical assaults – where there was evidence of a preliminary complaint in support of the complainant’s credibility – where there was medical evidence supportive of the complainant’s evidence of physical assault – where there was evidence telling against the complainant’s assertion of a fearful relationship – whether it was open to the jury to conclude beyond reasonable doubt that the appellant was guilty of each of the offences

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – OTHER MATTERS – where the appellant relied on the defence of honest and reasonable, but mistaken belief as to consent under s 24 Criminal Code 1899 (Qld) – where the complainant accepted, in cross-examination, that there had been occasions of mutual oral and anal intercourse and there was evidence from other witnesses consistent with there being a relationship – where those close to the complainant disapproved of homosexuality – where the appellant contends the trial judge’s failure to give specific directions in respect of the defence under s 24 Criminal Code 1899 (Qld) devalued the relevance of the defence – whether the trial judge’s direction adequately directed the jury in respect of s 24 Criminal Code 1899 (Qld) – whether more comprehensive directions may have affected the verdicts

Criminal Code 1899 (Qld), s 24
Criminal Law (Sexual Offences) Act 1978 (Qld), s 4

Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, followed
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied
Phillips v The Queen (2006) 225 CLR 303; [2006] HCA 4, applied
R v Dunrobin[2008]…

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 Dunrobin

Details

AGLC: R v Dunrobin [2013] QCA 175
Case: [2013] QCA 175
Decision Date: 12 July 2013

CaseChat Overview and Summary

The case of R v Dunrobin involved an appeal against convictions on various counts of rape and other sexual offences. The appellant, Dunrobin, was convicted on count 3 of the indictment despite no evidence being presented in support of that count. Dunrobin contended that the verdict on count 3, without any supporting evidence, undermined the credibility of all other verdicts, thereby constituting a "poisoned well." Additionally, Dunrobin argued that the trial judge failed to adequately instruct the jury regarding the defence of honest and reasonable, but mistaken belief as to consent, as provided under section 24 of the Criminal Code 1899 (Qld).

The court had to determine whether the jury was justified in concluding beyond reasonable doubt that Dunrobin was guilty of the offences charged, given the absence of evidence for count 3 and the potential impact of this on the other counts. The court also needed to assess whether the trial judge's instructions to the jury regarding the defence of consent were sufficient or if more comprehensive directions could have influenced the verdicts.

The court found that the failure to provide evidence in support of count 3, combined with the potential misdirection regarding the defence of consent, created a significant risk that the jury's verdicts were unreliable. Consequently, the appeal was allowed, the convictions in respect of counts 1, 2, 4, 6 and 7 were set aside, and a new trial was ordered for those counts.

Orders

Orders of the court

1. Appeal be allowed.

2. Convictions in respect of counts 1, 2, 4, 6 and 7 be set aside.

3. New trial ordered in respect of counts 1, 2, 4, 6 and 7.

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 Dunrobin [2013] QCA 175
PARTIES:	R v DUNROBIN, Shannon Robert (appellant/applicant)
FILE NO/S:	CA No 275 of 2011 DC No 80 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Bundaberg
DELIVERED ON:	12 July 2013
DELIVERED AT:	Brisbane
HEARING DATE:	9 May 2013
JUDGES:	Muir and Gotterson JJA and Boddice J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal be allowed. 2. Convictions in respect of counts 1, 2, 4, 6 and 7 be set aside. 3. New trial ordered in respect of counts 1, 2, 4, 6 and 7.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – OTHER MATTERS – where the appellant was convicted on count 3 of the indictment where no evidence had been given in support of that count – where the appellant contends the verdict on count 3 without evidence compromised all other verdicts such as to constitute a “poisoned well” – where the appellant gave evidence of sexual contact in respect of each of the remaining counts of rape – where the complainant’s evidence involved assertions of acts of intercourse in circumstances where any consent was obtained through fear or intimidation, including physical assaults – where there was evidence of a preliminary complaint in support of the complainant’s credibility – where there was medical evidence supportive of the complainant’s evidence of physical assault – where there was evidence telling against the complainant’s assertion of a fearful relationship – whether it was open to the jury to conclude beyond reasonable doubt that the appellant was guilty of each of the offences CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – OTHER MATTERS – where the appellant relied on the defence of honest and reasonable, but mistaken belief as to consent under s 24 Criminal Code 1899 (Qld) – where the complainant accepted, in cross-examination, that there had been occasions of mutual oral and anal intercourse and there was evidence from other witnesses consistent with there being a relationship – where those close to the complainant disapproved of homosexuality – where the appellant contends the trial judge’s failure to give specific directions in respect of the defence under s 24 Criminal Code 1899 (Qld) devalued the relevance of the defence – whether the trial judge’s direction adequately directed the jury in respect of s 24 Criminal Code 1899 (Qld) – whether more comprehensive directions may have affected the verdicts Criminal Code 1899 (Qld), s 24 Criminal Law (Sexual Offences) Act 1978 (Qld), s 4 Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, followed M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied Phillips v The Queen (2006) 225 CLR 303; [2006] HCA 4, applied R v Dunrobin[2008]…