R v HAK - [2008] QCA 30

SUPREME COURT OF QUEENSLAND

CITATION:

R v HAK [2008] QCA 30

PARTIES:

R
v
HAK
(appellant)

FILE NO/S:

CA No 208 of 2007
DC No 65 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction and Sentence

ORIGINATING COURT:

District Court at Toowoomba

DELIVERED ON:

29 February 2008

DELIVERED AT:

Brisbane

HEARING DATE:

12 February 2008

JUDGES:

Holmes and Muir JJA and Mackenzie AJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

ORDER:

1. Appeal against conviction dismissed

2. Set aside the sentence on count four and substitute a sentence of seven years imprisonment

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES- RAPE AND SEXUAL ASSAULT – where complainant found guilty of two counts of rape and one count of indecent assault

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – where complainant suffered from multiple personality disorder – where no expert evidence adduced as to complainant’s mental state at the time of the offence – whether judge had duty to direct Crown to obtain evidence as to complaint’s mental state – whether judge had duty to provide warning as to reliability of complainant’s evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – where witness made hearsay and opinion allegations as to complainant’s reliability – whether judge was correct in directing jury to disregard witness’s evidence

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – SUMMING UP – whether summing up adequately summarised defendant’s case – whether specific matters should have been put to jury

CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – where appellant did not plead guilty but argued that “low key” cross-examination of complainant was a mitigating factor – where judge found that appellant’s submissions that sexual activity was consensual amounted to calling complainant a liar – whether judge improperly took these matters into account

CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – whether sentence of eight years for rape manifestly excessive – where complainant suffered from physical and mental frailty – where no surreptitious or forced entry by appellant – where no violence outside the sexual assault – where appellant had no history of sexual offences

Criminal Code Act 1899 (Qld), s 348, s 419(1)

R v Apostilides (1984) 154 CLR 563; [1984] HCA 38, cited
Bromley v R (1986) 161 CLR 315; [1986] HCA 49, cited
R v Gogouk [2006] QCA 230, cited
R v Q [2003] 421, cited
R v Raymond [1994] QCA 441; CA No 299 of 1994, 12 September 1994, cited
R v Taiters [2001] QCA 324, cited

COUNSEL:

R Salehkon for the appellant
S G Bain for the respondent

SOLICITORS:

Aboriginal Legal Services (Toowoomba)
Director of Public Prosecutions (Queensland)…

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 HAK

Details

AGLC: R v HAK [2008] QCA 30
Case: [2008] QCA 30
Decision Date: 29 February 2008

CaseChat Overview and Summary

The appellant was found guilty of two counts of rape and one count of indecent assault. The appellant appealed against the conviction, arguing that the trial judge misdirected the jury on several points. The appeal also challenged the sentence, claiming it was manifestly excessive. The Court of Appeal considered whether the judge had a duty to direct the Crown to obtain expert evidence regarding the complainant’s mental state, given she suffered from multiple personality disorder. The court examined whether the judge should have warned the jury about the reliability of the complainant’s evidence in the absence of such evidence.

The court found that the judge did not err in directing the jury to disregard a witness's hearsay and opinion allegations about the complainant's reliability. The summing up was deemed adequate, and the specific matters raised by the appellant did not warrant additional instructions to the jury. The court also concluded that the judge did not improperly consider the appellant's cross-examination approach and denial of the complainant's credibility in sentencing. The sentence of eight years for the rape charges was deemed not manifestly excessive, given the complainant's physical and mental frailty, the absence of forced entry or violence outside the sexual assault, and the appellant's lack of prior sexual offence history.

The appeal against conviction was dismissed, but the sentence on count four was set aside, and a sentence of seven years imprisonment was substituted. This adjustment reflects the court's consideration of the mitigating factors and the overall circumstances of the case.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Set aside the sentence on count four and substitute a sentence of seven years imprisonment

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 HAK [2008] QCA 30
PARTIES:	R v HAK (appellant)
FILE NO/S:	CA No 208 of 2007 DC No 65 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction and Sentence
ORIGINATING COURT:	District Court at Toowoomba
DELIVERED ON:	29 February 2008
DELIVERED AT:	Brisbane
HEARING DATE:	12 February 2008
JUDGES:	Holmes and Muir JJA and Mackenzie AJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made.
ORDER:	1. Appeal against conviction dismissed 2. Set aside the sentence on count four and substitute a sentence of seven years imprisonment
CATCHWORDS:	CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES- RAPE AND SEXUAL ASSAULT – where complainant found guilty of two counts of rape and one count of indecent assault CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – where complainant suffered from multiple personality disorder – where no expert evidence adduced as to complainant’s mental state at the time of the offence – whether judge had duty to direct Crown to obtain evidence as to complaint’s mental state – whether judge had duty to provide warning as to reliability of complainant’s evidence CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – where witness made hearsay and opinion allegations as to complainant’s reliability – whether judge was correct in directing jury to disregard witness’s evidence CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – SUMMING UP – whether summing up adequately summarised defendant’s case – whether specific matters should have been put to jury CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – where appellant did not plead guilty but argued that “low key” cross-examination of complainant was a mitigating factor – where judge found that appellant’s submissions that sexual activity was consensual amounted to calling complainant a liar – whether judge improperly took these matters into account CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – whether sentence of eight years for rape manifestly excessive – where complainant suffered from physical and mental frailty – where no surreptitious or forced entry by appellant – where no violence outside the sexual assault – where appellant had no history of sexual offences Criminal Code Act 1899 (Qld), s 348, s 419(1) R v Apostilides (1984) 154 CLR 563; [1984] HCA 38, cited Bromley v R (1986) 161 CLR 315; [1986] HCA 49, cited R v Gogouk [2006] QCA 230, cited R v Q [2003] 421, cited R v Raymond [1994] QCA 441; CA No 299 of 1994, 12 September 1994, cited R v Taiters [2001] QCA 324, cited
COUNSEL:	R Salehkon for the appellant S G Bain for the respondent
SOLICITORS:	Aboriginal Legal Services (Toowoomba) Director of Public Prosecutions (Queensland)…