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R v Libke

R v Libke

Case [2006] QCA 242 23 June 2006

Jurisdiction

Unreasonable or Insupportable Verdict

Appeal Against Sentence

Compensatory Damages

Criminal Law

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Libke [2006] QCA 242

PARTIES:

R
v
LIBKE, Justin Patrick

(appellant/applicant)

FILE NO/S:

CA No 134 of 2005

DC No 330 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

23 June 2006

DELIVERED AT:

Brisbane

HEARING DATE:

11 April 2006

JUDGES:

Williams JA, Chesterman and Mullins JJ

Separate reasons for judgment of each member of the Court, Williams JA and Mullins J concurring as to the orders made, Chesterman J dissenting

ORDERS:

1. Appeal against conviction dismissed
2. Grant application for leave to appeal against sentence
3. Appeal against sentence on counts 1, 2 and 4 allowed

4. Sentences of 8 years’ imprisonment on counts 1, 2 and 4 set aside and sentences of 5 years’ imprisonment substituted on each of counts 1, 2 and 4

CATCHWORDS:

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - VERDICT INCONSISTENT, AMBIGUOUS AND MEANINGLESS VERDICTS - PARTICULAR CASES - OFFENCES AGAINST THE PERSON- SEXUAL OFFENCES – where defendant was found guilty of one count of rape and not guilty of another two counts of rape – whether verdict of guilty was factually inconsistent with not guilty verdicts – where the digital penetration that was the subject of the verdict of guilty of rape occurred at a different time and in different circumstances to the acts of sexual intercourse that were the subject of the verdicts of not guilty of rape – verdicts not inconsistent

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – where defendant convicted of one count of rape which involved digital penetration – where complainant had an intellectual impairment - where complainant gave affirmative response in cross-examination to the suggestion that when the defendant put his fingers into her shorts she turned her legs towards the defendant to make it easier for him to penetrate her vagina with his finger – where defendant’s version was that complainant had swung her legs towards him displaying her vagina before he put his hand into her shorts - discrepancy between defendant’s version and the version which was put to the complainant in cross-examination – where complainant’s video-taped interview recorded about a week after the incident was tendered under s 93A Evidence Act 1977 (Qld) – where there was other evidence that may have reduced the significance of the complainant’s affirmative response to the suggestion put in cross-examination – verdict not unreasonable

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - CONDUCT OF LEGAL PRACTITIONERS – where defendant gave evidence - during cross-examination prosecutor was sarcastic and made comments throughout the cross-examination – where prosecutor incorrectly suggested to the defendant that his evidence on a peripheral matter was an invention – where defendant not deprived of the right to a fair trial

CRIMINAL LAW – APPEAL AND NEW TRIAL…

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 Libke

Details

AGLC: R v Libke [2006] QCA 242
Case: [2006] QCA 242
Decision Date: 23 June 2006

CaseChat Overview and Summary

The appeal before the Court of Appeal was brought by the defendant, Libke, against his convictions and sentences for sexual offences. The case arose from an incident where the defendant was found guilty of one count of rape and not guilty of two other counts of rape. The complainant, who had an intellectual impairment, was the central witness in the trial. The court was required to determine whether the verdicts were inconsistent, whether they were unreasonable or unsupported by the evidence, and if the conduct of the prosecutor during the trial deprived the defendant of a fair trial. Additionally, the court had to assess whether the sentence of eight years' imprisonment for each count was manifestly excessive.

The court began by examining the consistency of the verdicts. It noted that the acts of digital penetration that led to the guilty verdict occurred at a different time and under different circumstances to the acts of sexual intercourse that led to the not guilty verdicts. The court found the verdicts to be consistent as they pertained to distinct acts under different circumstances. Regarding the reasonableness of the verdicts, the court considered the complainant's affirmative response in cross-examination to a suggestion that she turned her legs towards the defendant to facilitate penetration. The court found that the complainant's video-taped interview, along with other evidence, did not render the verdict unreasonable. Finally, the court addressed the prosecutor's conduct during the cross-examination, finding that while the prosecutor's comments were inappropriate, they did not deprive the defendant of a fair trial.

The court dismissed the appeal against the conviction but granted leave to appeal against the sentence. The sentence of eight years' imprisonment for each count was deemed manifestly excessive, and the sentences were reduced to five years' imprisonment for each count.

The orders of the court were that the appeal against conviction be dismissed, leave to appeal against the sentence be granted, the appeal against the sentence on counts 1, 2 and 4 be allowed, and the sentences of 8 years’ imprisonment on counts 1, 2 and 4 be set aside and sentences of 5 years’ imprisonment be substituted on each of counts 1, 2 and 4.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Grant application for leave to appeal against sentence

3. Appeal against sentence on counts 1, 2 and 4 allowed

4. Sentences of 8 years’ imprisonment on counts 1, 2 and 4 set aside and sentences of 5 years’ imprisonment substituted on each of counts 1, 2 and 4

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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Citations

R v Libke [2006] QCA 242

Most Recent Citation

R v Raphael [2009] QCA 145

Cases Citing This Decision

R v Hansen [2018] QCA 153
Citation 1 (Para 4)

…is of the sentences of between five and six years’ imprisonment that were imposed or not disturbed on appeal in R v Cutts [2005] QCA 306, R v Libke [2006] QCA 242 and R v Raphael [2009] QCA 145, the starting point for a notional head sentence (before taking into account the plea of guilty or time spent in pre-sen…
R v Little [2013] QCA 223
Citation 2 (Para 1)

…p for his own sexual gratification.[14] This direction was consistent with this Court's observations in R v Libke .[15] [14]T3-30.43-55 (AB 216). [15][2006] QCA 242, [100].…
R v Baxter [2010] QCA 235
Citation 3 (Para 1)

…The appellant in R v Libke [2006] QCA 242 was convicted after trial of one count of rape (involving digital penetration), two counts of unlawful carnal knowledge of an intellectually impaired person, one count of wilful and unlawful exposure of an intellectually impaired person to an indecent act and one count of…
R v Raphael [2009] QCA 145
Citation 4 (Para 1)

…he sentence imposed in this case in respect of the offence of unlawful carnal knowledge is not out of line with the approach taken in R v Libke . [10][2006] QCA 242. [11][2006] QCA 242 at [38].…
R v J.A.P. HC Auckland CRI-2007-083-000186 [2008] NZHC 2371
Citation 5

…t a complainant was consenting, or there was a reasonable possibility of belief and consent, does not provide a defence. A Queensland case, R v Libke [2006] QCA 242 on equivalent provisions supports the view that this type of crime is a true alternative to the charge of sexual violation.…
Libke v The Queen [2007] HCA 30
Citation 6 (Para 4)

…of conduct required of a prosecutor, as such conduct affects the entitlement of a person accused of criminal offences to a fair trial. [1] R v Libke [2006] QCA 242. The facts…

See all citing cases →

Cases Cited

R v Cutts [2005] QCA 306
Citation 1 (Para 1)

…The cases analysed by Mullins J show that a sentence of less than six years should have been imposed. R v Cutts [2005] QCA 306 was a much worse case. The complainant was physically disabled and Cutts took advantage of the woman’s incapacity to maul and rape her. Cutts used both subterfuge and violence against a d…
R v Mrzljak [2004] QCA 420
Citation 2

…wood [2004] QCA 207; CA Nos 90, 91, 98 & 132 of 2004, 18 June 2004, distinguished R v Mrzljak [2004] QCA 420; [2005] 1 Qd R 308, considered R v R [2003] QCA 285; CA No 62 of 2003, 11 July 2003, considered R v I A Shaw [1996] 1 Qd R 641, considered COUNSEL: P E Smith for the appellant/applicant R Pointing for the…
R v Keevers; R v Filewood [2004] QCA 207
Citation 3 (Para 1)

…R v Keevers ; R v Filewood [2004] QCA 207 is closer in fact to the present case though, of course, it involved the digital rape of a sleeping woman. The ‘moderate’ sentence was of two and a half years’ imprisonment, suspended after nine months.…
Paterson v The Queen [2004] WASCA 63
Citation 4

…02) 213 CLR 606, considered MacKenzie v The Queen (1996) 190 CLR 348, considered Paterson v R [2004] WASCA 63; CA Nos 128 & 129 of 2003, considered R v Cutts [2005] QCA 306; CA No 97 of 2005, 23 August 2005, considered R v Keevers; R v Filewood [2004] QCA 207; CA Nos 90, 91, 98 & 132 of 2004, 18 June 2004, disting…
R v R [2003] QCA 285
Citation 5 (Para 1)

…In R v R [2003] QCA 285, R was convicted after trial of 2 counts of rape and 2 counts of indecent dealing of his stepdaughter. The latter offences were committed when the stepdaughter was under 12 years old. The period of offending spanned at least 6 years. The evidence revealed many uncharged acts. A sentence of…
MFA v The Queen [2002] HCA 53
Citation 6

…229F, s 349(2)(b) Evidence Act 1977 (Qld) s 93A M v R (1994) 181 CLR 487, considered MFA v R (2002) 213 CLR 606, considered MacKenzie v The Queen (1996) 190 CLR 348, considered Paterson v R [2004] WASCA 63; CA Nos 128 & 129 of 2003, considered R v Cutts [2005] QCA 306; CA No 97 of 2005, 23 August 2005, considered R…
Mackenzie v The Queen [1996] HCA 35
Citation 7 (Para 1)

…at occurred in the park and what occurred in the house. The appellant’s argument relies on suggested factual inconsistency: MacKenzie v The Queen (1996) 190 CLR 348, 366. In making that submission, however, the appellant’s analysis of the two occasions was unduly confined. In respect of the first occasion, the submis…
M v the Queen [1994] HCA 63
Citation 8

…1899 (Qld), s 24 , s 216(4),s 216(6), s 229F, s 349(2)(b) Evidence Act 1977 (Qld) s 93A M v R (1994) 181 CLR 487, considered MFA v R (2002) 213 CLR 606, considered MacKenzie v The Queen (1996) 190 CLR 348, considered Paterson v R [2004] WASCA 63; CA Nos 128 & 129 of 2003, considered R v Cutts [2005] QCA 306; CA No 97…

Legislation Cited

Evidence Act 1977 (Qld) 93A
2 mentions (from Para 1)

CITATION:	R v Libke [2006] QCA 242
PARTIES:	R v LIBKE, Justin Patrick (appellant/applicant)
FILE NO/S:	CA No 134 of 2005 DC No 330 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	23 June 2006
DELIVERED AT:	Brisbane
HEARING DATE:	11 April 2006
JUDGES:	Williams JA, Chesterman and Mullins JJ Separate reasons for judgment of each member of the Court, Williams JA and Mullins J concurring as to the orders made, Chesterman J dissenting
ORDERS:	1. Appeal against conviction dismissed 2. Grant application for leave to appeal against sentence 3. Appeal against sentence on counts 1, 2 and 4 allowed 4. Sentences of 8 years’ imprisonment on counts 1, 2 and 4 set aside and sentences of 5 years’ imprisonment substituted on each of counts 1, 2 and 4
CATCHWORDS:	CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - VERDICT INCONSISTENT, AMBIGUOUS AND MEANINGLESS VERDICTS - PARTICULAR CASES - OFFENCES AGAINST THE PERSON- SEXUAL OFFENCES – where defendant was found guilty of one count of rape and not guilty of another two counts of rape – whether verdict of guilty was factually inconsistent with not guilty verdicts – where the digital penetration that was the subject of the verdict of guilty of rape occurred at a different time and in different circumstances to the acts of sexual intercourse that were the subject of the verdicts of not guilty of rape – verdicts not inconsistent CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – where defendant convicted of one count of rape which involved digital penetration – where complainant had an intellectual impairment - where complainant gave affirmative response in cross-examination to the suggestion that when the defendant put his fingers into her shorts she turned her legs towards the defendant to make it easier for him to penetrate her vagina with his finger – where defendant’s version was that complainant had swung her legs towards him displaying her vagina before he put his hand into her shorts - discrepancy between defendant’s version and the version which was put to the complainant in cross-examination – where complainant’s video-taped interview recorded about a week after the incident was tendered under s 93A Evidence Act 1977 (Qld) – where there was other evidence that may have reduced the significance of the complainant’s affirmative response to the suggestion put in cross-examination – verdict not unreasonable CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - CONDUCT OF LEGAL PRACTITIONERS – where defendant gave evidence - during cross-examination prosecutor was sarcastic and made comments throughout the cross-examination – where prosecutor incorrectly suggested to the defendant that his evidence on a peripheral matter was an invention – where defendant not deprived of the right to a fair trial CRIMINAL LAW – APPEAL AND NEW TRIAL…