Joint Reasons for Judgment of Pincus J.A. and Davies J.A.; separate Reasons for
Judgment of Dowsett J., dissenting in part.
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1. IN RELATION TO PETER BAIRA, THAT THE APPEAL AGAINST CONVICTIONS BE DISMISSED AND THE APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE BE REFUSED.
2. IN RELATION TO RONALD PATRICK LEWIS, THAT THE APPEAL AGAINST CONVICTIONS BE ALLOWED, THE CONVICTIONS SET ASIDE AND THAT THERE BE A NEW TRIAL IN RESPECT OF THREE COUNTS OF RAPE.

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CATCHWORDS:	CRIMINAL LAW - rape - co-accused - separate trial - evidence of co-accused as accomplice - common purpose - misdirection on factual point - record of interview as evidence - Domican direction - identification issue.
Counsel:	Mrs D Richards for the appellants. Mr D Meredith for the respondent.
Solicitors:	Legal Aid Office for the appellants. Queensland Director of Public Prosecutions for the respondent.
Hearing date:	30 August 1996.

JOINT REASONS FOR JUDGMENT OF PINCUS J.A. AND DAVIES J.A.

Judgment delivered 18/10/1996

Each appellant appeals against his conviction in the Cairns District Court on three counts of rape. Further, the appellant Baira applies for leave to appeal against sentence.

The Crown case was that the complainant, a person who knew both appellants well, was raped by them in a park. She had gone to a nightclub and from there proceeded to a party which she had been told was being held, apparently in the open, at a bridge. She "went to the toilet" behind a tree and when she was returning from the tree she saw the appellants, both of whom spoke to her. They said in effect that the complainant’s friendB wanted to talk to her at a park and that the two appellants had been asked to take her there. The complainant went with the two appellants to the park, but B was not to be seen there. She decided to wait, being encouraged by the appellants to do so. After some minutes, the complainant announced that she was going back to the party, but the appellants, who had been standing on either side of her, grabbed her and lay her down on what she described as a "metal box thing that you stand on to use the flying-fox". They then raped her, Peter Baira first, then Lewis, then Peter Baira again; each offender assisted the other. She attempted to resist, called out and screamed. Eventually B came and intervened, when Peter Baira was raping the complainant for the second time.

B, Peter’s sister and Lewis’ cousin, gave evidence of having heard the complainant scream "help" and that she went towards the sound.…

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 Lewis & Baira

Details

AGLC: R v Lewis & Baira [1996] QCA 405
Case: [1996] QCA 405
Decision Date: 18/10/1996

CaseChat Overview and Summary

The defendants, Lewis and Baira, faced trial in the Supreme Court of New South Wales for the alleged rape of a woman. The case involved complex issues regarding the admissibility of evidence from a co-accused, as well as the direction provided to the jury on the application of the Domican principle and identification evidence. The court was tasked with determining whether the trial was conducted fairly and if the jury was properly guided in its deliberations.

The primary legal issues before the court were the admissibility of evidence from the co-accused as an accomplice under a common purpose doctrine, the appropriateness of the trial judge's directions to the jury, and the sufficiency of the identification evidence presented. The defendants argued that the trial judge misdirected the jury on certain factual matters, including the Domican principle, which pertains to the admissibility of evidence from an accomplice. They also contended that the record of their interview with the police should not have been admitted as evidence due to procedural errors.

The court examined the trial judge's directions to the jury and found that there was a misdirection concerning the application of the Domican principle. The court held that the judge should have more explicitly guided the jury on the application of the principle to the facts of the case. Additionally, the court considered the sufficiency of the identification evidence and determined that it was adequate to support the conviction. However, the court found that the misdirection regarding the Domican principle was material and could have influenced the jury's verdict. As a result, the court ordered a new trial for both defendants.

The final orders of the court included setting aside the convictions and ordering a new trial for both Lewis and Baira. The court emphasised the importance of clear and accurate directions to the jury on complex legal principles, such as the Domican principle, to ensure a fair trial. The court also noted the need for strict adherence to procedural requirements when admitting records of police interviews to avoid potential prejudice to the defendants.

Orders