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R v Jassar

R v Jassar

Case [2013] QCA 115 17 May 2013

Appeal

Miscarriage of Justice

Misdirection or Non-Direction

Sentencing

Criminal Law

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Jassar [2013] QCA 115

PARTIES:

R
v
JASSAR, Sunveer
(appellant/applicant)

FILE NO/S:

CA No 290 of 2012
DC No 462 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

17 May 2013

DELIVERED AT:

Brisbane

HEARING DATE:

12 April 2013

JUDGES:

Holmes and Fraser JJA and Peter Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Appeal dismissed.1.

2. Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of an offence of rape – where the appellant did not give evidence – where the appellant contends there was a miscarriage of justice because there was a direction from the trial judge making reference to the fact the appellant was entitled to give evidence if he wished to do so – whether there was a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where there was a direction from the trial judge that there was evidence supporting the complainant’s account – where the appellant contends there was a miscarriage of justice because the evidence did not support the complainant’s account – whether there was a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where there was a direction from the trial judge that the appellant’s answers in a police interview had not been tested by cross–examination – where it was factually inaccurate to say so – whether the misdirection amounted to a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was sentenced to seven years imprisonment – where the appellant contends the sentence was manifestly excessive – whether the sentence was manifestly excessive

Criminal Code 1899 (Qld), s 668E

Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25, cited
Dyers v The Queen (2002) 210 CLR 285; [2002] HCA 45, cited
Mule v The Queen (2005) 79 ALJR 1573; [2005] HCA 49, considered
R v Allen [1937] St R Qd 32, cited
R v Clarke [1934] St R Qd 23, cited
R v Cohen and Bateman (1999) 2 Cr App R 197, cited
R v Cox [1986] 2 Qd R 55, considered
R v Cutts[2005] QCA 306, considered
R v DAH (2004) 150 A Crim R 14; [2004] QCA 419, considered
R v Dutton[2005] QCA 17, considered
R v Eastwell[1992] QCA 109, cited
R v Heal[2001] QCA 572, considered
R v…

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 Jassar

Details

AGLC: R v Jassar [2013] QCA 115
Case: [2013] QCA 115
Decision Date: 17 May 2013

CaseChat Overview and Summary

The case of R v Jassar was heard in an appellate court, where the appellant sought to challenge his conviction and sentence for the offence of rape. The appellant argued that there had been a miscarriage of justice in his trial due to certain directions made by the trial judge, and he further contended that the sentence imposed was manifestly excessive.

The legal issues before the court involved whether the directions made by the trial judge during the trial amounted to a miscarriage of justice, and whether the sentence imposed was manifestly excessive. Specifically, the appellant argued that the trial judge's direction concerning his choice to give evidence, the assertion that there was evidence supporting the complainant’s account, and the statement that his answers in a police interview had not been tested by cross-examination were erroneous and prejudicial. The appellant also claimed that the seven-year imprisonment sentence was disproportionately severe given the circumstances of the case.

The appellate court found that the trial judge's directions, although potentially imprecise, did not constitute a miscarriage of justice as they did not impact the overall fairness of the trial. The court held that the evidence did support the complainant's account and that the appellant's arguments regarding the police interview did not amount to a substantial irregularity. Additionally, the court determined that the sentence imposed was not manifestly excessive, taking into account the gravity of the offence and the appellant's criminal history.

The appeal was dismissed, and the application for leave to appeal against the sentence was also refused.

Orders

Orders of the court

Appeal dismissed.1.

2. Application for leave to appeal against sentence refused.

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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Actions

Citations

R v Jassar [2013] QCA 115

Cases Citing This Decision

No citing cases yet.

Cases Cited

Mule v The Queen [2005] HCA 49
Citation 1

…ueen (2002) 210 CLR 285; [2002] HCA 45, cited Mule v The Queen (2005) 79 ALJR 1573; [2005] HCA 49, considered R v Allen [1937] St R Qd 32, cited R v Clarke [1934] St R Qd 23, cited R v Cohen and Bateman (1999) 2 Cr App R 197, cited R v Cox [1986] 2 Qd R 55, considered R v Cutts [2005] QCA 306, considered R v DAH…
R v Cutts [2005] QCA 306
Citation 2 (Para 1)

…ts of degradation, found in other cases, referring to R v Rankmore: ex parte Attorney-General (Qld) [38] and R v Dutton [39]. [35][2001] QCA 572. [36][2005] QCA 306. [37][1992] QCA 109. [38][2002] QCA 492 at [36]-[37]. [39][2005] QCA 17.…
R v Dutton [2005] QCA 17
Citation 3 (Para 1)

…rte Attorney-General (Qld) [38] and R v Dutton [39]. [35][2001] QCA 572. [36][2005] QCA 306. [37][1992] QCA 109. [38][2002] QCA 492 at [36]-[37]. [39][2005] QCA 17.…
R v Surrey [2005] QCA 4
Citation 4

…] QCA 492, considered R v Smith [1937] QWN 16, cited R v Surrey [2005] 2 Qd R 81; [2005] QCA 4, considered R v Tooma [1971] Qd R 212, considered RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3, cited Simic v The Queen (1980) 144 CLR 319; [1980] HCA 25, considered TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA…
R v DAH [2004] QCA 419
Citation 5 (Para 1)

…and a passage from R v Surrey [5]. [1](2000) 199 CLR 620 at [20] and [47]-[48]. [2](2001) 205 CLR 50 at [64]. [3](2002) 210 CLR 285 at [5], [24]. [4][2004] QCA 419 at [86]. [5][2005] 2 Qd R 81 at [35]-[36].…
R v Rankmore; ex parte A-G (Qld) [2002] QCA 492
Citation 6 (Para 1)

…referring to R v Rankmore: ex parte Attorney-General (Qld) [38] and R v Dutton [39]. [35][2001] QCA 572. [36][2005] QCA 306. [37][1992] QCA 109. [38][2002] QCA 492 at [36]-[37]. [39][2005] QCA 17.…
TKWJ v The Queen [2002] HCA 46
Citation 7

…1980) 144 CLR 319; [1980] HCA 25, considered TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, considered Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65, cited COUNSEL: P D Kelly for the appellant/applicant D L Meredith for the respondent SOLICITORS: Stephens & Tozer Solicitors for the appellant/…
Dyers v The Queen [2002] HCA 45
Citation 8

…Queen (2001) 205 CLR 50; [2001] HCA 25, cited Dyers v The Queen (2002) 210 CLR 285; [2002] HCA 45, cited Mule v The Queen (2005) 79 ALJR 1573; [2005] HCA 49, considered R v Allen [1937] St R Qd 32, cited R v Clarke [1934] St R Qd 23, cited R v Cohen and Bateman (1999) 2 Cr App R 197, cited R v Cox [1986] 2 Qd R…
R v Heal [2001] QCA 572
Citation 9 (Para 1)

…, or accompanying acts of degradation, found in other cases, referring to R v Rankmore: ex parte Attorney-General (Qld) [38] and R v Dutton [39]. [35][2001] QCA 572. [36][2005] QCA 306. [37][1992] QCA 109. [38][2002] QCA 492 at [36]-[37]. [39][2005] QCA 17.…
Azzopardi v the Queen [2001] HCA 25
Citation 10

…excessive Criminal Code 1899 (Qld), s 668E Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25, cited Dyers v The Queen (2002) 210 CLR 285; [2002] HCA 45, cited Mule v The Queen (2005) 79 ALJR 1573; [2005] HCA 49, considered R v Allen [1937] St R Qd 32, cited R v Clarke [1934] St R Qd 23, cited R v Cohen and…
RPS v The Queen [2000] HCA 3
Citation 11

…sidered R v Tooma [1971] Qd R 212, considered RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3, cited Simic v The Queen (1980) 144 CLR 319; [1980] HCA 25, considered TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, considered Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65, cited COUNSEL: P D Ke…
Weissensteiner v The Queen [1993] HCA 65
Citation 12

…CLR 124; [2002] HCA 46, considered Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65, cited COUNSEL: P D Kelly for the appellant/applicant D L Meredith for the respondent SOLICITORS: Stephens & Tozer Solicitors for the appellant/applicant Director of Public Prosecutions (Queensland) for the respondent…
R v Eastwell [1992] QCA 109
Citation 13 (Para 1)

…ound in other cases, referring to R v Rankmore: ex parte Attorney-General (Qld) [38] and R v Dutton [39]. [35][2001] QCA 572. [36][2005] QCA 306. [37][1992] QCA 109. [38][2002] QCA 492 at [36]-[37]. [39][2005] QCA 17.…
Simic v The Queen [1980] HCA 25
Citation 14

…een (2000) 199 CLR 620; [2000] HCA 3, cited Simic v The Queen (1980) 144 CLR 319; [1980] HCA 25, considered TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, considered Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65, cited COUNSEL: P D Kelly for the appellant/applicant D L Meredith for the respon…
Cesan v The Queen [2008] HCA 52
Citation 15 (Para 82)

…[30]C esan v The Queen (2008) 236 CLR 358 at [82].…

Legislation Cited

Crimes Act 1958 (Vic)
1 mention (from Para 1)

CITATION:	R v Jassar [2013] QCA 115
PARTIES:	R v JASSAR, Sunveer (appellant/applicant)
FILE NO/S:	CA No 290 of 2012 DC No 462 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	17 May 2013
DELIVERED AT:	Brisbane
HEARING DATE:	12 April 2013
JUDGES:	Holmes and Fraser JJA and Peter Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Appeal dismissed.1. 2. Application for leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of an offence of rape – where the appellant did not give evidence – where the appellant contends there was a miscarriage of justice because there was a direction from the trial judge making reference to the fact the appellant was entitled to give evidence if he wished to do so – whether there was a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where there was a direction from the trial judge that there was evidence supporting the complainant’s account – where the appellant contends there was a miscarriage of justice because the evidence did not support the complainant’s account – whether there was a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where there was a direction from the trial judge that the appellant’s answers in a police interview had not been tested by cross–examination – where it was factually inaccurate to say so – whether the misdirection amounted to a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was sentenced to seven years imprisonment – where the appellant contends the sentence was manifestly excessive – whether the sentence was manifestly excessive Criminal Code 1899 (Qld), s 668E Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25, cited Dyers v The Queen (2002) 210 CLR 285; [2002] HCA 45, cited Mule v The Queen (2005) 79 ALJR 1573; [2005] HCA 49, considered R v Allen [1937] St R Qd 32, cited R v Clarke [1934] St R Qd 23, cited R v Cohen and Bateman (1999) 2 Cr App R 197, cited R v Cox [1986] 2 Qd R 55, considered R v Cutts[2005] QCA 306, considered R v DAH (2004) 150 A Crim R 14; [2004] QCA 419, considered R v Dutton[2005] QCA 17, considered R v Eastwell[1992] QCA 109, cited R v Heal[2001] QCA 572, considered R v…