R v Gould - [2014] QCA 164

SUPREME COURT OF QUEENSLAND

CITATION:

R v Gould [2014] QCA 164

PARTIES:

R
v
GOULD, Martin Karl
(appellant)

FILE NO/S:

CA No 271 of 2013
DC No 260 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Toowoomba

DELIVERED ON:

22 July 2014

DELIVERED AT:

Brisbane

HEARING DATE:

15 July 2014

JUDGES:

Muir and Fraser JJA and Peter Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    The appeal be allowed.

2.    The appellant’s convictions be quashed.

3.    Verdicts of acquittal be entered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where the appellant was convicted after a trial of: unlawfully confining the complainant against her will; assaulting the complainant with intent to rape; and raping the complainant – where the complainant was driving home from a hotel at night when she pulled over to investigate a suspected flat tyre – where the driver of a van approached the complainant and asked if she needed help – where the driver seized the complainant and raped her in the van then pushed her out of the van and drove away – where the complainant saw her assailant for a short amount of time in low light – where the complainant assisted police to prepare a “com-fit” image of the attacker – where nine months after the incident the complainant selected a photo of the appellant from a photo board, stating “number 6 looks like him” – where the prosecution case was inherently weak – where only one other person in the photo board resembled the complainant’s description of the attacker – whether the identification made by the complainant, together with the other evidence in the case, could satisfy the jury beyond reasonable doubt that the person the complainant saw immediately prior to being attacked was in fact the appellant

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where the appellant argued that if the complainant’s statement that “number 6 looks like him” in relation to the photo board did not constitute a positive identification of the appellant, it was circumstantial rather than direct evidence – whether, if the evidence was circumstantial, the primary judge erred in not giving the usual direction to the jury as to the use of circumstantial evidence – whether the verdict could be sustained by reference to purely circumstantial evidence

Alexander v The Queen (1981) 145 CLR 395; [1981] HCA 17, considered
Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13, followed
Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72, followed
Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15, cited
Kelleher v The Queen (1974) 131 CLR 534; [1974] HCA 48, applied

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 Gould

Details

AGLC: R v Gould [2014] QCA 164
Case: [2014] QCA 164
Decision Date: 22 July 2014

CaseChat Overview and Summary

In the case of R v Gould, the appellant was convicted of unlawfully confining, assaulting with intent to rape, and raping a complainant. The matter was heard in the court of appeal. The primary issue for determination was whether the identification of the appellant by the complainant, in conjunction with other evidence, could satisfy the jury beyond reasonable doubt that the person seen by the complainant prior to the attack was indeed the appellant. The appellant contended that the identification was not a positive identification but rather circumstantial evidence, and thus, the primary judge should have directed the jury on the use of circumstantial evidence.

The court found that the identification made by the complainant was not a positive identification but rather circumstantial evidence. The court held that the primary judge erred by not providing the usual direction to the jury on the use of circumstantial evidence. Given that the evidence was largely circumstantial, the court concluded that the verdict could not be sustained. The appeal was allowed, the appellant’s convictions were quashed, and verdicts of acquittal were entered.

Orders

Orders of the court

1. The appeal be allowed.

2. The appellant’s convictions be quashed.

3. Verdicts of acquittal be entered.

Background

Background to the litigation

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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

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CITATION:	R v Gould [2014] QCA 164
PARTIES:	R v GOULD, Martin Karl (appellant)
FILE NO/S:	CA No 271 of 2013 DC No 260 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Toowoomba
DELIVERED ON:	22 July 2014
DELIVERED AT:	Brisbane
HEARING DATE:	15 July 2014
JUDGES:	Muir and Fraser JJA and Peter Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The appeal be allowed. 2. The appellant’s convictions be quashed. 3. Verdicts of acquittal be entered.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where the appellant was convicted after a trial of: unlawfully confining the complainant against her will; assaulting the complainant with intent to rape; and raping the complainant – where the complainant was driving home from a hotel at night when she pulled over to investigate a suspected flat tyre – where the driver of a van approached the complainant and asked if she needed help – where the driver seized the complainant and raped her in the van then pushed her out of the van and drove away – where the complainant saw her assailant for a short amount of time in low light – where the complainant assisted police to prepare a “com-fit” image of the attacker – where nine months after the incident the complainant selected a photo of the appellant from a photo board, stating “number 6 looks like him” – where the prosecution case was inherently weak – where only one other person in the photo board resembled the complainant’s description of the attacker – whether the identification made by the complainant, together with the other evidence in the case, could satisfy the jury beyond reasonable doubt that the person the complainant saw immediately prior to being attacked was in fact the appellant CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where the appellant argued that if the complainant’s statement that “number 6 looks like him” in relation to the photo board did not constitute a positive identification of the appellant, it was circumstantial rather than direct evidence – whether, if the evidence was circumstantial, the primary judge erred in not giving the usual direction to the jury as to the use of circumstantial evidence – whether the verdict could be sustained by reference to purely circumstantial evidence Alexander v The Queen (1981) 145 CLR 395; [1981] HCA 17, considered Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13, followed Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72, followed Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15, cited Kelleher v The Queen (1974) 131 CLR 534; [1974] HCA 48, applied