R v FAV

Case [2019] QCA 299

SUPREME COURT OF QUEENSLAND

CITATION:

R v FAV [2019] QCA 299

PARTIES:

R
v
FAV
(appellant)

FILE NO/S:

CA No 342 of 2018
DC No 633 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 29 November 2018 (Williamson QC DCJ)

DELIVERED ON:

17 December 2019

DELIVERED AT:

Brisbane

HEARING DATE:

22 October 2019

JUDGES:

Fraser JA, Mullins AJA and Henry J

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted after trial of two counts of rape – where the trial judge directed the jury as to mistake of fact in relation to count 2 but not count 1 – where the only evidence that could be relied upon for mistake of fact was that of the complainant – whether the trial judge should have directed on mistake of fact in relation to count 1

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF TRIAL JUDGE – where the appellant was convicted after trial of two counts of rape – where the trial judge directed the jury as to mistake of fact in relation to count 2 but not count 1 –  where the appellant’s trial counsel did not address the jury on the defence of mistake of fact in respect of count 2 – whether the trial judge unduly restricted the appellant’s trial counsel’s address to the jury in relation to mistake of fact in respect of count 2

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF DEFENCE COUNSEL – where the appellant was convicted after trial of two counts of rape – where the trial judge directed the jury as to mistake of fact in relation to count 2 but not count 1 – where the appellant’s trial counsel did not address the jury on the defence of mistake of fact in respect of count 2 – whether the appellant’s trial counsel’s failure to address on mistake of fact amounts to a miscarriage of justice

CRIMINAL LAW – EVIDENCE – CORROBORATION – DIRECTIONS TO JURY – ADEQUACY OF WARNING – LIES BY ACCUSED – where the appellant was convicted after trial of two counts of rape – where for each count of rape an alternative charge of unlawful carnal knowledge was open on the indictment – where the trial judge held that an Edwards direction was not appropriate – where the trial judge gave a direction that any lies in the appellant’s record of interview went to his credit only – where the appellant’s trial counsel did not seek a redirection – whether the trial judge’s direction on lies amounts to an error of law

Criminal Code (Qld), s 24, s 348, s 619

Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42, considered

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AGLC
R v FAV [2019] QCA 299
Case
[2019] QCA 299
Decision Date

CaseChat Overview and Summary

The appellant was convicted of two counts of rape and the appeal against the conviction was dismissed by the Court of Appeal. The appellant was acquitted of a charge of indecent assault. The trial judge had directed the jury on the defence of mistake of fact in relation to count 2, but not count 1. The appellant's trial counsel did not address the jury on the defence of mistake of fact in respect of count 2, and the appellant argued that this was a miscarriage of justice. The appellant also argued that the trial judge should have directed the jury on mistake of fact in relation to count 1, and that the trial judge's direction on lies in the appellant's record of interview was an error of law.

The court considered whether the trial judge should have directed the jury on mistake of fact in relation to count 1, and whether the trial judge unduly restricted the appellant's trial counsel's address to the jury in relation to mistake of fact in respect of count 2. The court found that the trial judge did not err in directing the jury on mistake of fact in relation to count 2, but not count 1, as the only evidence that could be relied upon for mistake of fact was that of the complainant. The court also found that the trial judge did not unduly restrict the appellant's trial counsel's address to the jury in relation to mistake of fact in respect of count 2. The court found that the appellant's trial counsel's failure to address the jury on mistake of fact in respect of count 2 did not amount to a miscarriage of justice. The court found that the trial judge's direction on lies in the appellant's record of interview was not an error of law.

The appeal was dismissed. The court found that the trial judge did not err in directing the jury on mistake of fact in relation to count 2, but not count 1, and that the trial judge did not unduly restrict the appellant's trial counsel's address to the jury in relation to mistake of fact in respect of count 2. The court found that the appellant's trial counsel's failure to address the jury on mistake of fact in respect of count 2 did not amount to a miscarriage of justice. The court found that the trial judge's direction on lies in the appellant's record of interview was not an error of law. The court found that the conviction was safe and the appeal was dismissed.

Orders

Orders of the court

The appeal is dismissed.

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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