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R v Dunrobin

R v Dunrobin

Case [2012] QCA 209 17 August 2012

Appeal

Miscarriage of Justice

Improper Admission or Rejection of Evidence

Sentencing

Criminal Law

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Dunrobin [2012] QCA 209

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:

17 August 2012

DELIVERED AT:

Brisbane

HEARING DATE:

2 April 2012

JUDGES:

Fraser JA, Mullins and Ann Lyons JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    Application for leave to adduce evidence refused.

2.    Appeal dismissed.

3.    Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where appellant found guilty of five counts of rape and one count of assault occasioning bodily harm whilst armed and sentenced to 14 years imprisonment on counts 1, 4, 6 and 7 and to four years and eight years respectively on counts 2 and 3 – where appellant contended that verdicts of jury were not reasonable or cannot be supported having regard to evidence – where appellant contended that a reasonable doubt necessarily arose from a variety of circumstances – where appellant contended that prosecution could not exclude beyond reasonable doubt that appellant honestly and reasonably, but mistakenly, believed that complainant consented – whether verdicts of jury were not reasonable or cannot be supported having regard to evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where appellant sought to adduce new evidence that was said to show a miscarriage of justice – whether leave should be granted to allow new evidence – whether there was a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where appellant contends that directions given as to uncharged sexual acts and uncharged acts of violence were insufficient – where appellant contends that trial judge failed to give appropriate directions about certain evidence of the complainant’s demeanour and erred in leaving this evidence as corroboration of the complainant’s account – where appellant contended that trial judge’s directions as to appellant’s record of interview were deficient – where respondent contended trial judge’s directions were sufficient as prosecutor did not rely upon appellant’s record of interview as constituting lies or revealing consciousness of guilt – whether there was a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where appellant contended that hearsay evidence of complaints made by complainant to police officer were inadmissible insofar as it concerned offences which occurred before that date – where no objection to the evidence at trial – whether there was a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL –…

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 [2012] QCA 209
Case: [2012] QCA 209
Decision Date: 17 August 2012

CaseChat Overview and Summary

In the case of R v Dunrobin, the appellant, Dunrobin, was found guilty of five counts of rape and one count of assault occasioning bodily harm while armed. He was sentenced to a total of 14 years imprisonment on certain counts and lesser terms on others. Dunrobin appealed against both his conviction and his sentence. He argued that the verdicts were unreasonable and could not be supported by the evidence, and that there had been a miscarriage of justice due to various errors during the trial.

The legal issues before the court included whether the verdicts were unreasonable or could not be supported by the evidence, whether there was a miscarriage of justice due to particular circumstances, and whether the sentences imposed were manifestly excessive. Dunrobin argued that the jury's verdicts should not be upheld because a reasonable doubt necessarily arose from various circumstances. He also claimed that the trial judge's directions to the jury were deficient, that certain evidence should not have been admitted, and that new evidence should be considered to show a miscarriage of justice.

The court found that the jury's verdicts were not unreasonable or incapable of being supported by the evidence. The court held that the trial judge's directions were sufficient, and that there was no miscarriage of justice due to the particular circumstances. The court also found that the sentences imposed were not manifestly excessive, taking into account the nature of the offences, the appellant's criminal history, and other relevant factors.

The court dismissed the appeal against conviction and the application for leave to adduce new evidence. The court also dismissed the application for leave to appeal against sentence, affirming that the sentences were not manifestly excessive. The appeal was dismissed in its entirety.

Orders

Orders of the court

1. Application for leave to adduce evidence refused.

2. Appeal dismissed.

3. Application for leave to appeal against sentence refused.

Background

Background to the litigation

Full text does not contain this section.

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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Citations

AGLC Citation

R v Dunrobin [2012] QCA 209

Most Recent Citation

High Court Bulletin [2013] HCAB 1

Cases citing this decision · 1 of 1 shown

High Court Bulletin
[2013] HCAB 1

…Appealed from QSC (CA): [2012] QCA 209…

View all 1 citing cases →

Cases cited in this decision · 19 of 19 shown

R v Pao
[2012] QCA 8 Para 1

…) 235 CLR 334. See, for example, R v CAU [2010] QCA 46 at [96]. [11] R v McMullen [2011] QCA 153 at [85], [88], [89]. [12]See, for example, R v PAO [2012] QCA 8 at [55]-[57], per McMurdo P, Mullins J agreeing.…
R v McMullen
[2011] QCA 153 Para 1

…4 at [132]. [9][2006] QCA 21 at [15]-[20] and [37]-[46]. [10](2008) 235 CLR 334. See, for example, R v CAU [2010] QCA 46 at [96]. [11] R v McMullen [2011] QCA 153 at [85], [88], [89]. [12]See, for example, R v PAO [2012] QCA 8 at [55]-[57], per McMurdo P, Mullins J agreeing.…
Roach v The Queen
[2011] HCA 12

…A 21, cited Roach v The Queen (2011) 242 CLR 610; [2011] HCA 12, considered SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited COUNSEL: P E Smith for the appellant/applicant T A Fuller SC for the respondent SOLICITORS: Legal Aid Queensland for the appellant/applicant Director of Public Prosecutions (Queens…
SKA v The Queen
[2011] HCA 13

…2, considered SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited COUNSEL: P E Smith for the appellant/applicant T A Fuller SC for the respondent SOLICITORS: Legal Aid Queensland for the appellant/applicant Director of Public Prosecutions (Queensland) for the respondent…
R v Riera
[2011] QCA 77 Para 1

…f the offences, even if the preliminary complaint evidence was inadmissible, it did not produce a miscarriage of justice.[15] [15]See R v Riera [2011] QCA 77.…
R v Flynn
[2010] QCA 254 Para 1

…and the other decisions suggested that the appropriate head sentence, taking into account all offences, was between 10 and 12 years imprisonment. [19][2010] QCA 254. [20][1994] QCA 254. [21][2006] QCA 398. [22][2004] QCA 368. [23][1995] QCA 508.…
R v CAU
[2010] QCA 46 Para 1

…, [48]; HML v The Queen (2008) 235 CLR 334 at [132]. [9][2006] QCA 21 at [15]-[20] and [37]-[46]. [10](2008) 235 CLR 334. See, for example, R v CAU [2010] QCA 46 at [96]. [11] R v McMullen [2011] QCA 153 at [85], [88], [89]. [12]See, for example, R v PAO [2012] QCA 8 at [55]-[57], per McMurdo P, Mullins J agreei…
R v Williams
[2008] QCA 411 Para 1

…y strong and wrongly left the evidence as corroboration of the complainant’s account. [14] R v H [2001] QCA 563 at [22]; R v Williams [2008] QCA 411.…
HML v The Queen
[2008] HCA 16

…HCA 63, cited HML v The Queen (2008) 235 CLR 334; [2008] HCA 16, cited M v The Queen (1984) 181 CLR 487; [1994] HCA 63, cited MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited R v DAF [2004] QCA 368, considered R v Flynn [2010] QCA 254, considered R v McMullen [2011] QCA 153, cited R v PAD [2006] QCA 398,…
R v PAD
[2006] QCA 398 Para 1

…he appropriate head sentence, taking into account all offences, was between 10 and 12 years imprisonment. [19][2010] QCA 254. [20][1994] QCA 254. [21][2006] QCA 398. [22][2004] QCA 368. [23][1995] QCA 508.…
R v WO
[2006] QCA 21 Para 1

…l circumstances of the particular case.[12] [8] Roach v The Queen (2011) 242 CLR 610 at [47], [48]; HML v The Queen (2008) 235 CLR 334 at [132]. [9][2006] QCA 21 at [15]-[20] and [37]-[46]. [10](2008) 235 CLR 334. See, for example, R v CAU [2010] QCA 46 at [96]. [11] R v McMullen [2011] QCA 153 at [85], [88], [8…
R v DAF
[2004] QCA 368 Para 1

…sentence, taking into account all offences, was between 10 and 12 years imprisonment. [19][2010] QCA 254. [20][1994] QCA 254. [21][2006] QCA 398. [22][2004] QCA 368. [23][1995] QCA 508.…
MFA v The Queen
[2002] HCA 53

…HCA 63, cited MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited R v DAF [2004] QCA 368, considered R v Flynn [2010] QCA 254, considered R v McMullen [2011] QCA 153, cited R v PAD [2006] QCA 398, considered R v Soper [1994] QCA 254, considered R v WO [2006] QCA 21, cited Roach v The Queen (2011) 242 CLR 61…
R v H
[2001] QCA 563 Para 1

…dge’s directions were not sufficiently strong and wrongly left the evidence as corroboration of the complainant’s account. [14] R v H [2001] QCA 563 at [22]; R v Williams [2008] QCA 411.…
Zoneff v The Queen
[2000] HCA 28 Para 1

…in a circular or otherwise impermissible process of reasoning from supposed lies towards guilt.[17] [16](1993) 178 CLR 193. See Zoneff v The Queen (2000) 200 CLR 234 at 244: “As a general rule, however, an Edwards -type direction should only be given if the prosecution contends that a lie is evidence of guilt, in th…
R v Chinfat
[1995] QCA 508 Para 1

…o account all offences, was between 10 and 12 years imprisonment. [19][2010] QCA 254. [20][1994] QCA 254. [21][2006] QCA 398. [22][2004] QCA 368. [23][1995] QCA 508.…
M v the Queen
[1994] HCA 63

…] HCA 16, cited M v The Queen (1984) 181 CLR 487; [1994] HCA 63, cited MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited R v DAF [2004] QCA 368, considered R v Flynn [2010] QCA 254, considered R v McMullen [2011] QCA 153, cited R v PAD [2006] QCA 398, considered R v Soper [1994] QCA 254, considered R v WO…
Edwards v The Queen
[1993] HCA 63

…), s 161A Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63, cited HML v The Queen (2008) 235 CLR 334; [2008] HCA 16, cited M v The Queen (1984) 181 CLR 487; [1994] HCA 63, cited MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited R v DAF [2004] QCA 368, considered R v Flynn [2010] QCA 254, considered R…
R v Soper
[1994] QCA 254 Para 1

…ons suggested that the appropriate head sentence, taking into account all offences, was between 10 and 12 years imprisonment. [19][2010] QCA 254. [20][1994] QCA 254. [21][2006] QCA 398. [22][2004] QCA 368. [23][1995] QCA 508.…

Legislation cited in this decision · 2

Criminal Law (Sexual Offences) Act 1978 (Qld)
4A(2) 2 mentions (from Para 1)
Penalties and Sentences Act 1992 (Qld)
161A 2 mentions (from Para 1)

CITATION:	R v Dunrobin [2012] QCA 209
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:	17 August 2012
DELIVERED AT:	Brisbane
HEARING DATE:	2 April 2012
JUDGES:	Fraser JA, Mullins and Ann Lyons JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to adduce evidence refused. 2. Appeal dismissed. 3. Application for leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where appellant found guilty of five counts of rape and one count of assault occasioning bodily harm whilst armed and sentenced to 14 years imprisonment on counts 1, 4, 6 and 7 and to four years and eight years respectively on counts 2 and 3 – where appellant contended that verdicts of jury were not reasonable or cannot be supported having regard to evidence – where appellant contended that a reasonable doubt necessarily arose from a variety of circumstances – where appellant contended that prosecution could not exclude beyond reasonable doubt that appellant honestly and reasonably, but mistakenly, believed that complainant consented – whether verdicts of jury were not reasonable or cannot be supported having regard to evidence CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where appellant sought to adduce new evidence that was said to show a miscarriage of justice – whether leave should be granted to allow new evidence – whether there was a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where appellant contends that directions given as to uncharged sexual acts and uncharged acts of violence were insufficient – where appellant contends that trial judge failed to give appropriate directions about certain evidence of the complainant’s demeanour and erred in leaving this evidence as corroboration of the complainant’s account – where appellant contended that trial judge’s directions as to appellant’s record of interview were deficient – where respondent contended trial judge’s directions were sufficient as prosecutor did not rely upon appellant’s record of interview as constituting lies or revealing consciousness of guilt – whether there was a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where appellant contended that hearsay evidence of complaints made by complainant to police officer were inadmissible insofar as it concerned offences which occurred before that date – where no objection to the evidence at trial – whether there was a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL –…