R v GS - [2005] QCA 376

SUPREME COURT OF QUEENSLAND

CITATION:

R v GS [2005] QCA 376

PARTIES:

R
v
GS
(appellant)

FILE NO/S:

CA No 90 of 2005
DC No 2621 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

7 October 2005

DELIVERED AT:

Brisbane

HEARING DATE:

24 August 2005

JUDGES:

McMurdo P, McPherson JA and Fryberg J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – Appeal and new trial and inquiry after conviction – Miscarriage of justice – Non-direction – Corroboration – Child complainant of sexual offence – Whether trial judge erred in failing to give Robinson direction

CRIMINAL LAW – Appeal and new trial and inquiry after conviction – Particular grounds – Unreasonable or insupportable verdict – Where appeal dismissed – Whether trial judge erred in failing to direct on the use to be made of evidence of distress

CRIMINAL LAW – Jurisdiction, practice and procedure – Verdict – Alternative verdicts – Particular cases – Sexual offences – Rape – Whether trial judge erred in failing to leave alternative verdicts of indecent treatment to the jury

Criminal Code Act 1899 (Qld) s 578, s 632(2)

M v The Queen (1994) 181 CLR 487, cited
R v H [1999] 2 Qd R 283, referred to
R v RH [2004] QCA 225; [2005] 1 Qd R 180, referred to
R v Roisetter [1984] 1 Qd R 477, referred to
R v Rutherford [2004] QCA 481; CA No 295 of 2004, 17 December 2004, discussed
Robinson v The Queen (1999) 197 CLR 162, referred to

COUNSEL:

P E Smith for the appellant
M J Copley for the respondent

SOLICITORS:

Ken Owens Solicitors for the appellant
Director of Public Prosecutions (Queensland) for the respondent

McMURDO P: I agree with Fryberg J that the appeal should be dismissed and generally with his reasons in which the relevant facts and issues are set out.

The primary grounds of appeal pursued in oral argument at the hearing were that no reasonable jury properly instructed could have convicted the appellant of rape and that the alternative verdicts of indecent dealing should have been left to the jury on each count of rape.

The prosecution case was that the appellant twice raped his partner's eight year old daughter by penetrating her vagina with his finger. Section 349(2) Criminal Code relevantly provides that:

"A person rapes another person if -
…
(b) the person penetrates the vulva, vagina … of the other person to any extent with a … part of the person's body that is not a penis without the other person's consent; …".

That section distinguishes between the vulva (the external female genitalia, specifically the two pairs of labia and the cleft between them)[1] and the vagina (the passage leading from the uterus to the vulva in a female)[2] but provides that penetration of either vulva or vagina with another's finger…

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 GS

Details

AGLC: R v GS [2005] QCA 376
Case: [2005] QCA 376
Decision Date: 7 October 2005

CaseChat Overview and Summary

In the case of R v GS, the appellant was convicted of raping a child complainant. The case was brought before the court on appeal, with the appellant arguing that the trial judge made several errors that led to a miscarriage of justice. The errors alleged included the failure to give a Robinson direction, the failure to direct on the use to be made of evidence of distress, and the failure to leave alternative verdicts of indecent treatment to the jury. The appeal was heard and determined by the court, which found that the trial judge did not err in the manner alleged by the appellant.

The legal issues before the court were whether the trial judge made errors in not giving a Robinson direction, in not directing on the use to be made of evidence of distress, and in not leaving alternative verdicts of indecent treatment to the jury. The court examined the trial judge's directions to the jury and the evidence presented at trial in order to determine whether the trial judge's omissions were errors that led to a miscarriage of justice. The court found that the trial judge's directions were sufficient and that the evidence presented at trial was sufficient to support the jury's verdict.

The court's reasoning was that the trial judge's directions to the jury were adequate and that the evidence presented at trial was sufficient to support the jury's verdict. The court found that the trial judge did not err in failing to give a Robinson direction, as the direction is not mandatory in cases where the child complainant is over the age of twelve. The court also found that the trial judge's failure to direct on the use to be made of evidence of distress did not lead to a miscarriage of justice, as the evidence of distress was properly before the jury and they were able to consider it in determining the appellant's guilt or innocence. Finally, the court found that the trial judge did not err in failing to leave alternative verdicts of indecent treatment to the jury, as the evidence did not support such verdicts.

The court dismissed the appeal and made no further orders. The conviction of the appellant stands.

Orders

Orders of the court

Appeal 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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CITATION:	R v GS [2005] QCA 376
PARTIES:	R v GS (appellant)
FILE NO/S:	CA No 90 of 2005 DC No 2621 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	7 October 2005
DELIVERED AT:	Brisbane
HEARING DATE:	24 August 2005
JUDGES:	McMurdo P, McPherson JA and Fryberg J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW – Appeal and new trial and inquiry after conviction – Miscarriage of justice – Non-direction – Corroboration – Child complainant of sexual offence – Whether trial judge erred in failing to give Robinson direction CRIMINAL LAW – Appeal and new trial and inquiry after conviction – Particular grounds – Unreasonable or insupportable verdict – Where appeal dismissed – Whether trial judge erred in failing to direct on the use to be made of evidence of distress CRIMINAL LAW – Jurisdiction, practice and procedure – Verdict – Alternative verdicts – Particular cases – Sexual offences – Rape – Whether trial judge erred in failing to leave alternative verdicts of indecent treatment to the jury Criminal Code Act 1899 (Qld) s 578, s 632(2) M v The Queen (1994) 181 CLR 487, cited R v H [1999] 2 Qd R 283, referred to R v RH [2004] QCA 225; [2005] 1 Qd R 180, referred to R v Roisetter [1984] 1 Qd R 477, referred to R v Rutherford [2004] QCA 481; CA No 295 of 2004, 17 December 2004, discussed Robinson v The Queen (1999) 197 CLR 162, referred to
COUNSEL:	P E Smith for the appellant M J Copley for the respondent
SOLICITORS:	Ken Owens Solicitors for the appellant Director of Public Prosecutions (Queensland) for the respondent