R v HX - [2005] QCA 91

SUPREME COURT OF QUEENSLAND

CITATION:

R v HX [2005] QCA 91

PARTIES:

R
v
HX
(appellant/applicant)

FILE NO/S:

CA No 384 of 2004
DC No 246 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction and Sentence

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

8 April 2005

DELIVERED AT:

Brisbane

HEARING DATE:

24 March 2005

JUDGES:

McPherson JA, Fryberg and Holmes JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal against conviction dismissed
2. Application for leave to appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – WHERE GROUNDS FOR INTERFERENCE WITH VERDICT – PARTICULAR CASES – WHERE APPEAL DISMISSED – appellant convicted of rape – whether verdict unsafe or unsatisfactory – whether guilty verdict consistent with acquittal on assault charge – verdicts not inconsistent as guilty verdicts supported by independent evidence whereas less evidence to support assault charge – new evidence not admitted on appeal – no significant possibility new evidence would have given jury a reasonable doubt as to the appellant’s guilt

MacKenzie v The Queen (1996) 190 CLR 348, applied
Mickelberg v The Queen (1989) 167 CLR 259, cited
R v Main [1999] QCA 148, CA No 387 of 1998, 30 April 1999, cited

COUNSEL:

The appellant/applicant appeared on his own behalf
M J Copley for the respondent

SOLICITORS:

The appellant/applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

McPHERSON JA: In 2003, the complainant S and C, both about 20 years of age, shared a residence at Surfers Paradise. Their friend L came to stay with them on the night of 7^th May 2003. At about 10 pm the three of them went to a night club in central Surfers, travelling in S’s red Lancer sedan which she parked in Orchid Avenue. At the club they danced, talked and drank. C had to go to work the next day, so she left at some time between midnight and 1.00 am.

S and L moved on to The Drink Nightclub across the road. S was interested in a young man named DA with whom she was dancing. L was dancing with another young man named DB. At some stage, S approached the appellant, who was also there, and asked if he knew where L had gone. He was sitting down, and when S bent down to ask him this he kissed her on the mouth. She pushed him away; but, as luck would have it, DA returned at that moment bringing a drink. He was angry and left the nightclub after throwing his drink over them. Despite her efforts to explain and persuade him to stay on, DA called a taxi and departed. The appellant followed them outside, and, when she sat down and began crying, he sat beside her telling her she was beautiful and that she…

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 HX

Details

AGLC: R v HX [2005] QCA 91
Case: [2005] QCA 91
Decision Date: 8 April 2005

CaseChat Overview and Summary

In this appeal, HX appealed against his conviction for rape and the sentence imposed, contending that the verdict was unsafe and unsatisfactory, and that there was insufficient evidence to support the guilty verdict. The case was heard by the High Court of Australia. The appellant, HX, had been convicted of raping a woman, but acquitted of assaulting her. He appealed against his conviction, arguing that the verdict was inconsistent and that the guilty verdict was not supported by sufficient evidence. He also applied for leave to appeal against his sentence.

The court was required to determine whether the verdict was unsafe or unsatisfactory, whether the verdicts were inconsistent, and whether the guilty verdict was supported by sufficient evidence. The court also needed to determine whether there was a significant possibility that the new evidence would have given the jury a reasonable doubt as to the appellant’s guilt. The court held that the verdicts were not inconsistent as the guilty verdicts were supported by independent evidence whereas less evidence supported the assault charge. The court also held that the new evidence was not admissible on appeal and there was no significant possibility that the new evidence would have given the jury a reasonable doubt as to the appellant’s guilt.

The appeal against the conviction was dismissed, and the application for leave to appeal against the sentence was also dismissed. The court held that the evidence was sufficient to support the guilty verdict and that the verdict was not unsafe or unsatisfactory. The court also held that there was no significant possibility that the new evidence would have given the jury a reasonable doubt as to the appellant’s guilt. The appellant’s conviction and sentence were therefore upheld.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence 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 HX [2005] QCA 91
PARTIES:	R v HX (appellant/applicant)
FILE NO/S:	CA No 384 of 2004 DC No 246 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction and Sentence
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	8 April 2005
DELIVERED AT:	Brisbane
HEARING DATE:	24 March 2005
JUDGES:	McPherson JA, Fryberg and Holmes JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal against conviction dismissed 2. Application for leave to appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – WHERE GROUNDS FOR INTERFERENCE WITH VERDICT – PARTICULAR CASES – WHERE APPEAL DISMISSED – appellant convicted of rape – whether verdict unsafe or unsatisfactory – whether guilty verdict consistent with acquittal on assault charge – verdicts not inconsistent as guilty verdicts supported by independent evidence whereas less evidence to support assault charge – new evidence not admitted on appeal – no significant possibility new evidence would have given jury a reasonable doubt as to the appellant’s guilt MacKenzie v The Queen (1996) 190 CLR 348, applied Mickelberg v The Queen (1989) 167 CLR 259, cited R v Main [1999] QCA 148, CA No 387 of 1998, 30 April 1999, cited
COUNSEL:	The appellant/applicant appeared on his own behalf M J Copley for the respondent
SOLICITORS:	The appellant/applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent