R v Dunrobin

Case [2008] QCA 116

SUPREME COURT OF QUEENSLAND

CITATION:

R v Dunrobin [2008] QCA 116

PARTIES:

R
v
DUNROBIN, Lindsay Daniel
(appellant)

FILE NO/S:

CA No 321 of 2007
CA No 48 of 2008
DC No 317 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction and Sentence
Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED ON:

16 May 2008

DELIVERED AT:

Brisbane

HEARING DATE:

31 March 2008

JUDGES:

Muir JA, Fryberg and Lyons JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Allow appeal against conviction

2.   Convictions be set aside

3.   Order a retrial on counts 1 and 4

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – CONDUCT OF LEGAL PRACTITIONERS – where the appellant was convicted of one count of indecent assault and one count of rape and sentenced to seven years imprisonment – where the appellant was acquitted of one count of rape and the prosecution entered a nolle prosequi in relation to one count of indecent assault – where the appellant stated in a police record of interview that the complainant agreed to sex – where the appellant’s counsel did not intend to advance an argument of actual consent – where the primary judge effectively ruled that the appellant’s counsel must put to the complainant the statement of actual consent in the record of interview – where the complainant’s responses in          cross-examination in relation to actual consent were damaging to the appellant’s case – whether the appellant’s counsel was obliged to put to the complainant a version of events which she did not intend to rely – whether there was a miscarriage of justice
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – CONDUCT OF LEGAL PRACTITIONERS – where the appellant suffered from chronic paranoid schizophrenia – where the appellant’s police record of interview was admitted – whether the appellant’s counsel should have argued that the record of interview be excluded due to the appellant’s psychiatric condition which made the content of the interview inherently unreliable – whether there was a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – 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 appellant suffered from chronic paranoid schizophrenia – whether the primary judge’s directions were wrong in law and deficient in explaining the elements of s 24 Criminal Code 1899 (Qld) and in relating the facts of the case back to those elements – whether there was a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – CONDUCT OF TRIAL JUDGE –…

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AGLC
R v Dunrobin [2008] QCA 116
Case
[2008] QCA 116
Decision Date

CaseChat Overview and Summary

In the case of R v Dunrobin, the appellant was convicted of one count of indecent assault and one count of rape, receiving a sentence of seven years imprisonment. He was acquitted of another count of rape, and the prosecution entered a nolle prosequi for a fourth count of indecent assault. The central issues for the court were the conduct of the appellant’s legal counsel, the admissibility of the appellant’s police record of interview given his psychiatric condition, and the adequacy of the trial judge's directions to the jury concerning the defence of honest and reasonable, but mistaken belief as to consent.

The court was required to determine whether the appellant’s counsel was obliged to present the complainant with the statement from the record of interview that she had agreed to sex, despite the counsel not intending to rely on this version of events. The court also considered whether counsel should have sought to exclude the police record of interview due to the appellant's chronic paranoid schizophrenia, which rendered the interview's content inherently unreliable. Furthermore, the court examined whether the trial judge's directions to the jury regarding the defence of honest and reasonable, but mistaken belief as to consent were correct in law and properly explained the elements of the relevant section of the Criminal Code.

In ruling on the appeal, the court concluded that the appellant’s counsel was not obligated to present the statement of actual consent to the complainant, as this was not the position they intended to rely on. The court also found that counsel should have argued for the exclusion of the police record of interview on the grounds of the appellant’s psychiatric condition. Additionally, the court determined that the trial judge’s directions to the jury were deficient, particularly in relation to the elements of the defence and in connecting the facts of the case to those elements. Consequently, the court allowed the appeal against conviction, set aside the convictions, and ordered a retrial on counts 1 and 4.

Orders

Orders of the court

1. Allow appeal against conviction

2. Convictions be set aside

3. Order a retrial on counts 1 and 4

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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