SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v GBOJUEH
[2009] SASC 104
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Kourakis)
27 April 2009
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - VERDICT - INCONSISTENT, AMBIGUOUS AND MEANINGLESS VERDICTS
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - TEST TO BE APPLIED
CRIMINAL LAW - PROCEDURE - JURIES - OTHER MATTERS
Appeal against conviction - defendant and appellant charged with two counts of rape and unlawful sexual intercourse arising from two incidents of sexual intercourse with same complainant - defendant acquitted by jury verdict on one count of rape but convicted on second count of rape - whether verdicts unreasonable and inconsistent - whether verdict of guilty supported by the evidence - whether verdict unsafe and unsatisfactory - whether verdict should be set aside.
Held (per Gray and Sulan JJ agreeing): conviction set aside - verdict of guilty unsafe and unsatisfactory - verdict of acquittal and conviction cannot stand together.
(per Kourakis J dissenting): appeal dismissed - circumstances of each incident were sufficiently different to allow, as a matter of logic and human experience, the jury to be satisfied beyond reasonable doubt of the commission of the second offence but not the first.
Criminal Law Consolidation Act 1935 (SA) s 353(1); Juries Act 1927 (SA) s 33, Sch 6, referred to.
M v The Queen (1994) 181 CLR 487; MacKenzie v The Queen (1996) 190 CLR 348; R v Stone (unreported, CCA Eng, Devlin J, 13 December 1954); MFA v The Queen (2002) 213 CLR 606; R v Kirkman (1987) 44 SASR 591; R v Melville (1956) 73 WN (NSW) 579; Newell v The King (1936) 55 CLR 707; Hocking v Bell (1945) 71 CLR 430; Mechanical & General Inventions Co Ltd & Anor v Austin Motor Co [1935] AC 346; Mourani v Jeldi Manufacturing Pty Ltd (1983) 57 ALJR 825; Cairns v John Fairfax & Sons Ltd [1983] 2 NSWLR 708; Otis Elevators Pty Ltd v Zitis (1986) 5 NSWLR 171; Ward v James [1966] 1 QB 273; Jones v The Queen (1997) 191 CLR 439; Bushell's Case [1670] 124 ER 1006; Packett v The King (1937) 58 CLR 190; Gammage v The Queen (1969) 122 CLR 444; R v Singh (1977) 17 SASR 73; R v Prasad (1979) 23 SASR 161; R v H, GJ (2008) 102 SASR 82; R v Kelly (1985) 38 SASR 561; R v JA [2008] VSCA 169; R v RAT (2000) 111 A Crim R 360; R v D [2000] NSWCCA 443; R v Liddy (2002) 81 SASR 22; R v KWG [2000] SASC 398; R v Markuleski (2001) 52 NSWLR 82; R v Hare [2007] SASC 427; R v Kelly (1985) 38 SASR 561;
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- AGLC
- R v Gbojueh [2009] SASC 104
- Case
- [2009] SASC 104
- Decision Date
CaseChat Overview and Summary
The court applied the test established in M v The Queen, which requires the court to determine if it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty, considering the advantages enjoyed by the jury in seeing and hearing the evidence. The court found that the evidence did not provide a basis for the jury's different verdicts. The court acknowledged that in most cases, a doubt experienced by an appellate court would be a doubt which a jury should also have experienced, but recognised that a court of criminal appeal may conclude that there has been no miscarriage of justice if the jury's advantage in seeing and hearing the evidence resolves a doubt experienced by the court of criminal appeal.
The Court of Criminal Appeal concluded that the evidence did not provide a basis on which the jury reached their different verdicts. The court held that the conviction should be set aside because the verdict of guilty was unsafe and unsatisfactory. The verdict of acquittal and conviction could not stand together, and the appeal was allowed.
The court set aside the conviction and quashed the verdict of guilty, resulting in the appellant being acquitted of the charge of rape.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
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Decision
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Ratio Decidendi
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