R v M - [2001] QCA 166

[2001] QCA 166

COURT OF APPEAL

McPHERSON JA
THOMAS JA
MACKENZIE J

CA No 221 of 2000

THE QUEEN

M Appellant

BRISBANE

..DATE 01/05/2001

JUDGMENT

McPHERSON JA: The applicant has appeared in person to argue his appeal against conviction at a trial and the sentence, imposed in consequence, in the District Court at Townsville.

The offences of which the jury found him guilty were committed on the night of 28, 29 November 1999 at the complainant's home where she lived with her young children. The offences were one count of burglary, one of rape, assault occasioning bodily harm, deprivation of liberty, two counts of indecent assault with circumstances of aggravation and a count of assault.

The appellant and the complainant had been living together off and on for the best part of nine years and they had five children under eight years of age. They had separated shortly before the incident in question. The complainant had obtained a domestic violence order in October 1999 and the evidence at the trial was that the complainant had arranged for the applicant's name to be removed from the lease, and was occupying the house on her own with her children.

On the appeal before us the appellant sought to present us with a letter obtained in April this year, which came from the relevant government department and referred to the question of whether or not the house had been transferred from one name to another; but that evidence, which would constitute new or fresh evidence for this purpose, was not presented at the trial in November 1999 and is not admissible at this hearing.

The grounds of the appeal consist of alleged misdirections by the trial Judge. It is convenient to consider them in the context of each particular offence to which they relate.
At about 11.30 p.m. on 29 November 1999 the appellant used a trampoline to enable him to climb through a window of the house in which the complainant was living. This was the subject of count 1, burglary. On entering the house he showed the complainant a number of zip ties and asked her if she knew what they were for. The objects in question are depicted in the photographs which were among the exhibits at the trial. It is apparent that they are lengths of black plastic strapping. The complainant took fright on being shown the ties and, because she mistook them for spear nails, she began to cry.

The appellant then pulled her by the hair into the bedroom and, although she did not struggle, she screamed out of the bedroom window.

To this the appellant responded by punching her in the eye. That punch was the subject of the charge in count 2 of assault occasioning bodily harm. The appellant ordered the complainant to undress and she complied through fear. He tied her hands to the bed head with the zip ties, which resulted in the charge in count 3 of deprivation of liberty.

He…

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 M

Details

AGLC: R v M [2001] QCA 166
Case: [2001] QCA 166
Decision Date: 1 May 2001

CaseChat Overview and Summary

In the case of R v M, the Court of Appeal considered an appeal against conviction and sentence by the appellant, who was convicted of multiple serious offences including burglary, rape, and assault. The Court of Appeal was tasked with determining whether the trial judge had erred in his directions to the jury, and if the sentence imposed was appropriate. The appellant, who had a history of domestic violence and criminal offending, had broken into the complainant's house, assaulted her, and committed other serious offences. The jury had found him guilty based on uncontradicted evidence presented at the trial.

The court reviewed the grounds of appeal, which primarily concerned the trial judge's instructions to the jury regarding the use of circumstantial evidence and the requirements for establishing intent. The court found no legal errors in the trial judge's directions, concluding that the jury was properly guided to consider all the evidence and draw appropriate inferences. The court also noted that the appellant had not presented any new evidence that would warrant a different outcome. Regarding the sentence, the court held that the nine-year imprisonment term was justified given the gravity of the offences and the appellant's criminal history.

The Court of Appeal dismissed the appeal against conviction and refused the application for leave to appeal against sentence. The judges agreed that the evidence supported the jury's verdict and that the sentence was commensurate with the seriousness of the crimes committed.

Orders