R v Lee - [2012] QCA 239

SUPREME COURT OF QUEENSLAND

CITATION:

R v Lee [2012] QCA 239

PARTIES:

R
v
LEE, Martin Giles
(appellant/applicant)

FILE NO/S:

CA No 311 of 2011
DC No 248 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

7 September 2012

DELIVERED AT:

Brisbane

HEARING DATE:

14 August 2012

JUDGES:

Holmes and Muir JJA, North J
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 refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of one count of rape and one count of attempted rape – where the appellant contended that the verdict was ‘unsafe and unsatisfactory’ – whether the complainant’s failure to seek the help of a visitor who attended the appellant’s apartment, inconsistencies in her account as to whether the appellant was wearing a condom, and the absence of injuries to her so affected her credit as to render the verdict unreasonable – whether the conviction should be set aside

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where the appellant was convicted of one count of rape and one count of attempted rape – where the complainant’s evidence was recorded prior to trial under s 21AK of the Evidence Act 1977 – where the appellant gave evidence of matters not put to the complainant – where the appellant’s counsel had not sought to have the complainant re-called to give further evidence on those matters – where there was no evidence of his instructions on those matters – where the trial judge directed the jury that there might be reasons for the failure to put the matters to the complainant that did not reflect on the appellant’s credibility – whether the failure to re-call the complainant resulted in a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where the statement of a witness who could not be located was tendered at the trial – where the appellant contended that the trial should not have proceeded until the witness was found – where no application for an adjournment was made – where the appellant sought to adduce evidence that the complainant had previously been sexually assaulted – where the appellant contended that the complainant’s boyfriend should have been called as a witness but failed to identify any admissible evidence he could give – whether any miscarriage of justice occurred

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was convicted of one count of rape and one count of attempted rape – where the complainant was 15 years of age at the time of the offences, and there…

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 Lee

Details

AGLC: R v Lee [2012] QCA 239
Case: [2012] QCA 239
Decision Date: 7 September 2012

CaseChat Overview and Summary

The appellant, Lee, was convicted of one count of rape and one count of attempted rape. The appellant appealed against the conviction, arguing that the verdict was 'unsafe and unsatisfactory' due to several factors, including the complainant's failure to seek the help of a visitor present in the appellant's apartment, inconsistencies in her account regarding whether the appellant was wearing a condom, and the absence of injuries to her. Lee also argued that the failure to re-call the complainant and the absence of a missing witness constituted a miscarriage of justice. The appellant further contended that the sentence imposed was manifestly excessive.

The primary legal issues before the court were whether the verdict was unreasonable or insupportable, and whether the appellant's right to a fair trial was compromised by the absence of certain witnesses or the failure to re-call the complainant. The court had to determine if the appellant's arguments undermined the credibility of the complainant to such an extent that the verdict was unreasonable, and whether the absence of the witnesses or the failure to re-call the complainant resulted in a miscarriage of justice. Additionally, the court needed to assess if the sentence imposed was manifestly excessive.

The court found that the jury had properly considered all the evidence, including the inconsistencies and the absence of physical evidence, and had reasonably concluded that the appellant was guilty. The court held that the appellant had failed to show that the complainant's failure to seek help from a visitor or the inconsistencies in her account were so significant as to render the verdict unreasonable. Regarding the miscarriage of justice, the court found that the appellant's counsel had not sought to have the complainant re-called, and there was no evidence of instructions to do so. The court held that the absence of a missing witness and the failure to adduce evidence from the complainant's boyfriend did not result in a miscarriage of justice. Finally, the court found that the sentence was not manifestly excessive given the nature of the offences and the appellant's lack of remorse.

The court dismissed the appeal against the conviction and refused the application for leave to appeal against the sentence.

Orders

Orders of the court

1. Appeal against conviction dismissed.

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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CITATION:	R v Lee [2012] QCA 239
PARTIES:	R v LEE, Martin Giles (appellant/applicant)
FILE NO/S:	CA No 311 of 2011 DC No 248 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	7 September 2012
DELIVERED AT:	Brisbane
HEARING DATE:	14 August 2012
JUDGES:	Holmes and Muir JJA, North J 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 refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of one count of rape and one count of attempted rape – where the appellant contended that the verdict was ‘unsafe and unsatisfactory’ – whether the complainant’s failure to seek the help of a visitor who attended the appellant’s apartment, inconsistencies in her account as to whether the appellant was wearing a condom, and the absence of injuries to her so affected her credit as to render the verdict unreasonable – whether the conviction should be set aside CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where the appellant was convicted of one count of rape and one count of attempted rape – where the complainant’s evidence was recorded prior to trial under s 21AK of the Evidence Act 1977 – where the appellant gave evidence of matters not put to the complainant – where the appellant’s counsel had not sought to have the complainant re-called to give further evidence on those matters – where there was no evidence of his instructions on those matters – where the trial judge directed the jury that there might be reasons for the failure to put the matters to the complainant that did not reflect on the appellant’s credibility – whether the failure to re-call the complainant resulted in a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where the statement of a witness who could not be located was tendered at the trial – where the appellant contended that the trial should not have proceeded until the witness was found – where no application for an adjournment was made – where the appellant sought to adduce evidence that the complainant had previously been sexually assaulted – where the appellant contended that the complainant’s boyfriend should have been called as a witness but failed to identify any admissible evidence he could give – whether any miscarriage of justice occurred CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was convicted of one count of rape and one count of attempted rape – where the complainant was 15 years of age at the time of the offences, and there…