Muir and Chesterman JJA and McMeekin J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:
The appeal be allowed.1.
The conviction be set aside.2.
A verdict of acquittal be entered.3.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – CONTROL OF PROCEEDINGS – OTHER MATTERS – primary judge refused appellant’s pre-trial application for a no jury order pursuant to s 590AA(2)(da) Criminal Code 1899 (Qld) – appellant submitted adverse pre-trial publicity may affect jury deliberations – whether primary judge erred in refusing to make a no jury order
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – appellant convicted of rape after a trial – complainant gave evidence of non-consensual anal penetration – appellant submitted that the jury could not have been satisfied of his guilt beyond reasonable doubt based on the evidence of the complainant – whether verdict unsafe or unsatisfactory
Criminal Code 1899 (Qld), s 590AA(2)(da), s 614, s 615, s 668E(1) Penalties and Sentences Act 1992 (Qld), s 161B
D O’Gorman SC, with M Nolan, for the appellant M B Lehane for the respondent
SOLICITORS:
The Advocacy & Support Centre for the appellant Director of Public Prosecutions (Queensland) for the respondent
[1] MUIR JA:Introduction
The appellant was convicted of rape after a two day trial and on 14 May 2010, was sentenced to 10 years' imprisonment. It was declared, pursuant to s 161B of the Penalties and Sentences Act 1992 (Qld), that he had been convicted of a serious violent offence. He appeals against his conviction and sentence.
[2] There are two grounds for…
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.
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AGLC
R v Fardon [2010] QCA 317
Case
[2010] QCA 317
Decision Date
CaseChat Overview and Summary
The appellant in R v Fardon appealed his conviction for rape, arguing that the trial judge had erred in refusing to grant a no jury order due to potential adverse pre-trial publicity and that the jury's verdict was unreasonable and unsatisfactory given the evidence presented. The case was heard in the Queensland Court of Appeal.
The primary legal issues before the court were whether the trial judge had erred in not making a no jury order, as requested by the appellant, and whether the jury's verdict was unreasonable or unsatisfactory given the evidence. The appellant contended that the pre-trial publicity could have unduly influenced the jury's deliberations and that the evidence provided by the complainant was insufficient to support a conviction beyond reasonable doubt.
The court considered the appellant's submissions on both grounds. Regarding the no jury order, the court held that the trial judge did not err in refusing the application, as there was no clear and convincing evidence that pre-trial publicity would affect the jury's impartiality. Concerning the jury's verdict, the court found that the evidence, while sufficient for a conviction, did not meet the threshold of being beyond reasonable doubt. The court determined that the evidence, particularly the complainant's account of non-consensual anal penetration, was not strong enough to satisfy the jury beyond reasonable doubt.
The appeal was allowed, the conviction was set aside, and a verdict of acquittal was entered.