R v Elomari - [2012] QCA 27

SUPREME COURT OF QUEENSLAND

CITATION:

R v Elomari [2012] QCA 27

PARTIES:

R
v
ELOMARI, Safwen
(appellant)

FILE NO/S:

CA No 174 of 2011
DC No 875 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

28 February 2012

DELIVERED AT:

Brisbane

HEARING DATE:

7 February 2012

JUDGES:

Margaret McMurdo P and White JA and Atkinson J
Separate reasons for judgment of each member of the Court, White JA and Atkinson J concurring as to the order made, Margaret McMurdo P dissenting

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE OF JUSTICE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where appellant convicted of rape – where defence counsel did not contend at trial that mistake of fact was raised at the evidence – whether trial judge erred in failing to direct the jury in relation to s 24(1) Criminal Code 1899 (Qld) – whether a miscarriage of justice occurred

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE OF JUSTICE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where appellant gave evidence of motive of complainant to lie at trial – where appellant convicted – whether the trial judge erred in failing to give a Palmer direction – whether a miscarriage of justice occurred

Criminal Code 1899 (Qld), s 24

Loveday v Ayre and Ayre;Ex parte Ayre and Ayre [1955] St R Qd 264, followed
Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2, distinguished
Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20, considered
R v Di Bella [1998] QCA 288, followed
R v Hall[2011] QCA 26, followed
R v Hunt[1994] QCA 226, considered
R v Millar [2000] 1 Qd R 437; [1998] QCA 276, followed
R v SAX[2006] QCA 397, distinguished
R v Soloman[2006] QCA 244, distinguished
Stevens v The Queen (2005) 227 CLR 319; [2005] HCA 65, considered

COUNSEL:

C F C Wilson for the appellant
S P Vasta for the respondent

SOLICITORS:

Bell Miller Solicitors for the appellant
Director of Public Prosecutions (Queensland) for the respondent

MARGARET McMURDO P: The appellant has appealed against his conviction on one count of rape. Atkinson J has set out the relevant evidence at trial in her reasons so that I am able to concisely state why, unlike my colleagues, I would allow the appeal.

The prosecution case turned largely on the complainant’s evidence that the appellant raped her by forcing her to suck his penis. The defence case was that the oral sex occurred with the complainant’s consent and that she made a false complaint of rape against the appellant to induce him to withdraw an earlier complaint he had made against others in an unrelated criminal matter. Defence counsel told…

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 Elomari

Details

AGLC: R v Elomari [2012] QCA 27
Case: [2012] QCA 27
Decision Date: 28 February 2012

CaseChat Overview and Summary

The case of R v Elomari involved an appeal by the appellant against his conviction for rape. The trial resulted in the appellant being found guilty and sentenced to imprisonment. The Court of Appeal was tasked with determining whether the appellant's conviction should be quashed due to a miscarriage of justice. The grounds for appeal included the trial judge's failure to direct the jury on the defence of mistake of fact and the omission of a Palmer direction concerning the appellant's evidence about the complainant's motive to lie.

The central legal issues before the court were whether the trial judge's omissions amounted to a misdirection or non-direction that resulted in a miscarriage of justice. Specifically, the court examined whether the trial judge erred in not directing the jury on the defence of mistake of fact, which was not raised by the defence counsel during the trial, and whether the judge should have provided a Palmer direction in response to the appellant's evidence regarding the complainant's alleged motive to lie. The court needed to assess whether these omissions were significant enough to warrant a new trial or an acquittal.

The Court of Appeal held that while the trial judge's omissions were indeed errors, they did not amount to a miscarriage of justice. The court found that the jury could have reasonably reached the verdict without the omitted directions, given the strength of the prosecution's evidence and the absence of any significant impact from the errors on the jury's decision-making process. Consequently, the appeal was dismissed, and the appellant's conviction was upheld.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Elomari [2012] QCA 27
PARTIES:	R v ELOMARI, Safwen (appellant)
FILE NO/S:	CA No 174 of 2011 DC No 875 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	28 February 2012
DELIVERED AT:	Brisbane
HEARING DATE:	7 February 2012
JUDGES:	Margaret McMurdo P and White JA and Atkinson J Separate reasons for judgment of each member of the Court, White JA and Atkinson J concurring as to the order made, Margaret McMurdo P dissenting
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE OF JUSTICE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where appellant convicted of rape – where defence counsel did not contend at trial that mistake of fact was raised at the evidence – whether trial judge erred in failing to direct the jury in relation to s 24(1) Criminal Code 1899 (Qld) – whether a miscarriage of justice occurred CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE OF JUSTICE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where appellant gave evidence of motive of complainant to lie at trial – where appellant convicted – whether the trial judge erred in failing to give a Palmer direction – whether a miscarriage of justice occurred Criminal Code 1899 (Qld), s 24 Loveday v Ayre and Ayre;Ex parte Ayre and Ayre [1955] St R Qd 264, followed Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2, distinguished Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20, considered R v Di Bella [1998] QCA 288, followed R v Hall[2011] QCA 26, followed R v Hunt[1994] QCA 226, considered R v Millar [2000] 1 Qd R 437; [1998] QCA 276, followed R v SAX[2006] QCA 397, distinguished R v Soloman[2006] QCA 244, distinguished Stevens v The Queen (2005) 227 CLR 319; [2005] HCA 65, considered
COUNSEL:	C F C Wilson for the appellant S P Vasta for the respondent
SOLICITORS:	Bell Miller Solicitors for the appellant Director of Public Prosecutions (Queensland) for the respondent