R v HAC - [2006] QCA 291

SUPREME COURT OF QUEENSLAND

CITATION:

R v HAC [2006] QCA 291

PARTIES:

R
v
HAC
(appellant)

FILE NO/S:

CA No 17 of 2006
DC No 645 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

11 August 2006

DELIVERED AT:

Brisbane

HEARING DATE:

14 July 2006

JUDGES:

Williams, Jerrard and Holmes JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal against conviction dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL – MISDIRECTION AND NON-DIRECTION – GENERALLY – appellant convicted of torture, assault occasioning bodily harm and rape – sentenced to 10 years imprisonment for torture, two years imprisonment for assault occasioning bodily harm and five years for rape with serious violent offender declaration – whether trial judge misdirected jury on the torture count – whether misdirection on torture was sufficiently significant to justify overturning torture conviction

Criminal Code 1899 (Qld), s 320A

R v LM [2004] QCA 192; CA No 246 of 2003 & 314 of 2003, 4 June 2004, considered
R v Ping [2005] QCA 472; CA No 207 of 2005, 16 December 2005, considered
Weiss v R (2006) 223 ALR 662 at [43]; [2005] HCA 81, applied

COUNSEL:

G P Long for the appellant
M J Copley for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

WILLIAMS JA: I am content to adopt the statement of background facts detailed in the reasons for judgment of Jerrard JA which I have had the advantage of reading.

The Crown correctly conceded that there was a misdirection in the summing up. The directions given by the learned trial judge effectively permitted the jury to convict of torture even though the jury might not have been unanimously satisfied as to which act or series of acts were intentionally inflicted to cause severe pain or suffering. The direction given was not in accord with what was said by this Court in R v LM [2004] QCA 192 at [94]; the relevant passage is fully quoted by Jerrard JA in his reasons. The real issue in the appeal therefore became whether or not this was an appropriate case for the application of the proviso; s 668E(1)A of the Criminal Code1899 (Qld). The High Court in Darkan & Ors v The Queen [2006] HCA 34 recognised that the proviso could be applied even where the error in question went to an element of the offence.

My initial concern in relation to the possible application of the proviso was based on the fact that the jury acquitted the appellant of five counts of rape, counts 2, 3, 5, 6 and 9 on the indictment. The question was whether or not the return of those not guilty verdicts meant…

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 HAC

Details

AGLC: R v HAC [2006] QCA 291
Case: [2006] QCA 291
Decision Date: 11 August 2006

CaseChat Overview and Summary

The appellant was convicted of torture, assault occasioning bodily harm and rape, and sentenced to a total of 17 years imprisonment. The appellant appealed the conviction, arguing that the trial judge misdirected the jury on the torture count and that the misdirection was sufficiently significant to warrant a new trial. The appeal was brought before the court, which was tasked with determining whether the trial judge's alleged misdirection on the torture count was significant enough to warrant a new trial, and whether this misdirection affected the conviction for torture.

The court considered the evidence presented and the arguments made by both parties. It examined the trial judge's instructions to the jury on the elements of the offence of torture and whether the instructions were accurate and complete. The court also considered whether the misdirection, if any, was substantial enough to affect the verdict on the torture count and whether it was significant enough to warrant a new trial. The court noted that the jury had been properly directed on the essential elements of the offence of torture and that any error in the trial judge's directions did not result in a miscarriage of justice.

Having considered the evidence and arguments, the court found that the trial judge's directions to the jury on the offence of torture were not misdirections and that any errors made were not significant enough to warrant a new trial. The court held that the appellant's conviction for torture should be upheld, and the appeal against the conviction was dismissed.

Orders

Orders of the court

Appeal against conviction dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v HAC [2006] QCA 291
PARTIES:	R v HAC (appellant)
FILE NO/S:	CA No 17 of 2006 DC No 645 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	11 August 2006
DELIVERED AT:	Brisbane
HEARING DATE:	14 July 2006
JUDGES:	Williams, Jerrard and Holmes JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal against conviction dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL – MISDIRECTION AND NON-DIRECTION – GENERALLY – appellant convicted of torture, assault occasioning bodily harm and rape – sentenced to 10 years imprisonment for torture, two years imprisonment for assault occasioning bodily harm and five years for rape with serious violent offender declaration – whether trial judge misdirected jury on the torture count – whether misdirection on torture was sufficiently significant to justify overturning torture conviction Criminal Code 1899 (Qld), s 320A R v LM [2004] QCA 192; CA No 246 of 2003 & 314 of 2003, 4 June 2004, considered R v Ping [2005] QCA 472; CA No 207 of 2005, 16 December 2005, considered Weiss v R (2006) 223 ALR 662 at [43]; [2005] HCA 81, applied
COUNSEL:	G P Long for the appellant M J Copley for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent