R v JK - [2005] QCA 307

SUPREME COURT OF QUEENSLAND

CITATION:

R v JK [2005] QCA 307

PARTIES:

R
v
JK
(appellant)

FILE NO/S:

CA No 78 of 2005
DC No 419 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED ON:

23 August 2005

DELIVERED AT:

Brisbane

HEARING DATE:

29 July 2005

JUDGES:

McMurdo P, Williams and Jerrard 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 - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE APPEAL DISMISSED - appellant charged with four counts of rape and one count of sexual assault with a circumstance of aggravation - found guilty after trial of two counts of rape and not guilty of one count of rape - jury unable to agree on one count of sexual assault and one count of rape - appellant contends convictions unsafe, unsatisfactory and unreasonable having regard to the inconsistency with the verdict of acquittal on one count and the inability to agree on two counts - whether guilty verdicts unsafe or unsatisfactory - whether jury's failure to reach a verdict on two counts whilst convicting on two counts constitutes a miscarriage of justice

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISDIRECTION AND NON-DIRECTION - defence counsel at trial requested the jury be directed that if they had a reasonable doubt about the veracity or reliability of the complainant's evidence in respect of one count then that doubt ought to be taken into account in assessing her credibility or reliability on all other counts - defence counsel's request rejected by trial judge - trial judge directed the jury they needed to consider the reason why they had a reasonable doubt about a particular part of the complainant's evidence and to consider whether it affected the way they assessed the rest of the complainant's evidence - whether trial judge erred by not giving the direction requested

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISDIRECTION AND NON-DIRECTION - PRESENTATION OF DEFENCE CASE AND CROWN CASE AND REVIEW OF EVIDENCE - GENERALLY - medical evidence that complainant had injuries consistent with penetration by a large object such as a penis or two adult male sized fingers - prosecutor during closing address said there was no suggestion the complainant had any other sexual experience other than that alleged at trial to explain her injuries - defence counsel submitted prosecutor's remarks inappropriate - trial judge directed jury as to the use to be made of medical evidence and prosecutor's comments - whether any miscarriage of justice arose from the prosecutor's comments

Criminal Law (Sexual Offences) Act 1978 (Qld), s 4

R v Allingham [1991] 1 Qd R 429, cited
R v Hughes [1998] QCA 279;…

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 JK

Details

AGLC: R v JK [2005] QCA 307
Case: [2005] QCA 307
Decision Date: 23 August 2005

CaseChat Overview and Summary

The appeal, heard by the Queensland Court of Appeal, was brought by the appellant against his convictions on two counts of rape and the trial judge's refusal to direct the jury as to the use of medical evidence in the case. The appellant had been found guilty of two counts of rape and acquitted on one count, while the jury was unable to reach a verdict on one count of rape and one count of sexual assault. The appellant argued that his convictions were unsafe, unsatisfactory and unreasonable, and that the trial judge had erred in not directing the jury as to the use of medical evidence and the prosecutor's comments. The court was required to determine whether the convictions were indeed unsafe or unsatisfactory, whether the jury's failure to reach a verdict on two counts constituted a miscarriage of justice, and whether the trial judge had erred in not directing the jury as to the use of medical evidence and the prosecutor's comments.

The court considered the arguments made by the appellant and found that the jury's verdicts on the two counts of rape were safe and satisfactory. The court noted that the jury had acquitted the appellant on one count of rape and had been unable to reach a verdict on another count, and that this inconsistency did not necessarily render the convictions unsafe or unsatisfactory. The court found that the trial judge had not erred in rejecting the defence counsel's request for a direction as to the use of medical evidence and the prosecutor's comments, and that any error in this regard did not constitute a miscarriage of justice. The court also noted that the trial judge had given an appropriate direction to the jury as to the use of the medical evidence and the prosecutor's comments.

The court dismissed the appeal against the convictions and found that the convictions were safe and satisfactory. The court noted that the jury's failure to reach a verdict on two counts did not constitute a miscarriage of justice, and that the trial judge had not erred in rejecting the defence counsel's request for a direction as to the use of medical evidence and the prosecutor's comments. The court found that the appellant's convictions on two counts of rape were safe and satisfactory, and that the appeal against 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

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v JK [2005] QCA 307
PARTIES:	R v JK (appellant)
FILE NO/S:	CA No 78 of 2005 DC No 419 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Beenleigh
DELIVERED ON:	23 August 2005
DELIVERED AT:	Brisbane
HEARING DATE:	29 July 2005
JUDGES:	McMurdo P, Williams and Jerrard 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 - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE APPEAL DISMISSED - appellant charged with four counts of rape and one count of sexual assault with a circumstance of aggravation - found guilty after trial of two counts of rape and not guilty of one count of rape - jury unable to agree on one count of sexual assault and one count of rape - appellant contends convictions unsafe, unsatisfactory and unreasonable having regard to the inconsistency with the verdict of acquittal on one count and the inability to agree on two counts - whether guilty verdicts unsafe or unsatisfactory - whether jury's failure to reach a verdict on two counts whilst convicting on two counts constitutes a miscarriage of justice CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISDIRECTION AND NON-DIRECTION - defence counsel at trial requested the jury be directed that if they had a reasonable doubt about the veracity or reliability of the complainant's evidence in respect of one count then that doubt ought to be taken into account in assessing her credibility or reliability on all other counts - defence counsel's request rejected by trial judge - trial judge directed the jury they needed to consider the reason why they had a reasonable doubt about a particular part of the complainant's evidence and to consider whether it affected the way they assessed the rest of the complainant's evidence - whether trial judge erred by not giving the direction requested CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISDIRECTION AND NON-DIRECTION - PRESENTATION OF DEFENCE CASE AND CROWN CASE AND REVIEW OF EVIDENCE - GENERALLY - medical evidence that complainant had injuries consistent with penetration by a large object such as a penis or two adult male sized fingers - prosecutor during closing address said there was no suggestion the complainant had any other sexual experience other than that alleged at trial to explain her injuries - defence counsel submitted prosecutor's remarks inappropriate - trial judge directed jury as to the use to be made of medical evidence and prosecutor's comments - whether any miscarriage of justice arose from the prosecutor's comments Criminal Law (Sexual Offences) Act 1978 (Qld), s 4 R v Allingham [1991] 1 Qd R 429, cited R v Hughes [1998] QCA 279;…