R v Irlam; ex parte A-G - [2002] QCA 235

SUPREME COURT OF QUEENSLAND

CITATION:

R v Irlam; ex parte A-G [2002] QCA 235

PARTIES:

R
v
IRLAM, Irvan David
(appellant)

R
v
IRLAM, Irvan David
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 157 of 2002
CA No 173 of 2002
DC No 16 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against convictions;
Sentence appeal by A-G (Qld)

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

28 June 2002

DELIVERED AT:

Brisbane

HEARING DATE:

26 June 2002

JUDGES:

de Jersey CJ, Davies and Williams JJA
Judgment of the Court

ORDER:

1.   In Appeal No 157 of 2002: Appeal against convictions dismissed.

2.   In Appeal No 173 of 2002: Attorney-General’s appeal against sentence allowed; on count five (rape), set aside the penalty imposed, and in lieu thereof, order that the respondent be imprisoned for seven years, with a recommendation that he be considered eligible for post prison community based release after serving two years of that term.

3.   In Appeal No 173 of 2002: Order that a warrant issue for the arrest of the respondent.

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – RAPE AND SEXUAL ASSAULT – PROOF AND EVIDENCE – where appellant convicted of multiple counts of indecent dealing and one of rape – where sentenced to five years’ imprisonment – where appellant appeals against conviction

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – INTERFERENCE – GENERAL PRINCIPLES – whether trial judge erred in taking too much account of the respondent’s characteristics at the time of sentencing – where respondent wheelchair bound after suffering strokes – where offences occurred over 30 years ago – whether disproportionate attention was given to his age, state of heath and the circumstance that his medical condition necessitated incarceration in southern Queensland away from his family – whether the sentencing discretion of the trial judge miscarried to the point where the sentence imposed is manifestly inadequate

EVIDENCE – BURDEN OF PROOF PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE –CORROBORATION – WHAT CONSTITUTES – whether trial judge erred in admitting evidence of two witnesses in respect of 4 of the counts – where the two witnesses could not remember the date of the offences – where the witnesses noted that the sexual impropriety occurred “regularly” – where the witnesses’ evidence was potentially corrobative – whether this evidence was of more than merely slight probative value and left to the jury notwithstanding its prejudicial effect

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – OTHER MATTERS – where it was contended that the jury's verdicts were inconsistent – where three counts occurred on the same day but the jury acquitted on the third count – whether the trial judge had given directions as to the selective acceptance and rejection of a witness’s evidence, in whole or part,…

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.

Keep reading for free

Create a free CaseChat account to read R v Irlam; ex parte A-G and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2002] QCA 235
Decision Date: 28 June 2002

CaseChat Overview and Summary

In the case of R v Irlam; ex parte A-G, the appellant was convicted of multiple counts of indecent dealing and one count of rape. The appellant was sentenced to five years’ imprisonment, with a recommendation for suspension after 12 months. The case was brought to the attention of the court through an appeal against conviction and a separate appeal by the Attorney-General against the sentence. The primary issues before the court were the correctness of the trial judge’s sentencing discretion, the admissibility of certain evidence, and the sufficiency of the evidence to support the verdicts. Additionally, the court considered whether the trial judge’s directions to the jury were adequate and whether the verdicts were consistent and reasonable.

The court examined whether the trial judge had erred in considering the respondent’s health and other mitigating factors during sentencing. The court found that while these factors were relevant, they did not absolve the need to weigh them against the gravity of the crimes committed. The court also reviewed the evidence presented at trial, particularly focusing on the corroborative nature of the witnesses' testimonies and their reliability despite the passage of time since the offences occurred. The court held that the evidence was sufficient to support the convictions and that the trial judge's instructions to the jury were adequate.

In its reasoning, the court concluded that the appeal against conviction was dismissed as the evidence was deemed safe and satisfactory. Regarding the sentence, the court found that the original penalty was manifestly inadequate given the nature of the crimes. The court allowed the Attorney-General's appeal against the sentence and increased the penalty for the rape conviction to seven years' imprisonment, with eligibility for post-prison community-based release after serving two years.

The final orders of the court were to dismiss the appeal against convictions, increase the sentence for the rape conviction to seven years' imprisonment with a recommendation for early release, and issue a warrant for the respondent's arrest.

Orders

Orders of the court

1. In Appeal No 157 of 2002: Appeal against convictions dismissed.

2. In Appeal No 173 of 2002: Attorney-General’s appeal against sentence allowed; on count five (rape), set aside the penalty imposed, and in lieu thereof, order that the respondent be imprisoned for seven years, with a recommendation that he be considered eligible for post prison community based release after serving two years of that term.

3. In Appeal No 173 of 2002: Order that a warrant issue for the arrest of the respondent.

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 Irlam; ex parte A-G [2002] QCA 235
PARTIES:	R v IRLAM, Irvan David (appellant) R v IRLAM, Irvan David (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 157 of 2002 CA No 173 of 2002 DC No 16 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against convictions; Sentence appeal by A-G (Qld)
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	28 June 2002
DELIVERED AT:	Brisbane
HEARING DATE:	26 June 2002
JUDGES:	de Jersey CJ, Davies and Williams JJA Judgment of the Court
ORDER:	1. In Appeal No 157 of 2002: Appeal against convictions dismissed. 2. In Appeal No 173 of 2002: Attorney-General’s appeal against sentence allowed; on count five (rape), set aside the penalty imposed, and in lieu thereof, order that the respondent be imprisoned for seven years, with a recommendation that he be considered eligible for post prison community based release after serving two years of that term. 3. In Appeal No 173 of 2002: Order that a warrant issue for the arrest of the respondent.
CATCHWORDS:	CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – RAPE AND SEXUAL ASSAULT – PROOF AND EVIDENCE – where appellant convicted of multiple counts of indecent dealing and one of rape – where sentenced to five years’ imprisonment – where appellant appeals against conviction CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – INTERFERENCE – GENERAL PRINCIPLES – whether trial judge erred in taking too much account of the respondent’s characteristics at the time of sentencing – where respondent wheelchair bound after suffering strokes – where offences occurred over 30 years ago – whether disproportionate attention was given to his age, state of heath and the circumstance that his medical condition necessitated incarceration in southern Queensland away from his family – whether the sentencing discretion of the trial judge miscarried to the point where the sentence imposed is manifestly inadequate EVIDENCE – BURDEN OF PROOF PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE –CORROBORATION – WHAT CONSTITUTES – whether trial judge erred in admitting evidence of two witnesses in respect of 4 of the counts – where the two witnesses could not remember the date of the offences – where the witnesses noted that the sexual impropriety occurred “regularly” – where the witnesses’ evidence was potentially corrobative – whether this evidence was of more than merely slight probative value and left to the jury notwithstanding its prejudicial effect CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – OTHER MATTERS – where it was contended that the jury's verdicts were inconsistent – where three counts occurred on the same day but the jury acquitted on the third count – whether the trial judge had given directions as to the selective acceptance and rejection of a witness’s evidence, in whole or part,…