SUPREME COURT OF QUEENSLAND
CITATION:
R v Makary [2018] QCA 257
PARTIES:
R
v
MAKARY, Ashraf Kamal
(appellant/applicant)FILE NO/S:
CA No 157 of 2016
DC No 1097 of 2016DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction & Sentence
ORIGINATING COURT:
District Court at Brisbane – Date of Conviction: 1 June 2016; Date of Sentence: 3 June 2016 (Clare SC DCJ)
DELIVERED ON:
9 October 2018
DELIVERED AT:
Brisbane
HEARING DATES:
4 October 2017; 9 November 2017JUDGES:
Sofronoff P and McMurdo JA and Bond J
ORDERS:
1. Appeal against conviction dismissed.
2. Application for leave to appeal against sentence granted.
3. Appeal against sentence dismissed.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of three counts of administering a stupefying thing with intent to commit an indictable offence, two counts of rape and one count of attempted rape – where each of the three complainants were South Korean women who met the appellant on the internet –where the appellant met up with each complainant on a different occasion and spiked each complainant’s drink with sleeping tablets – where the appellant took advantage of each complainant’s compromised state as a result of the drugging to rape, or attempt to rape, each of them – where the appellant submits that the learned trial judge gave insufficient directions on the application of s 24 Criminal Code in respect of his offending against one of the complainants – where the appellant gave evidence that he did not have sexual intercourse with that complainant – where the matters raised by the appellant as matters going towards consideration of s 24 Criminal Code are not capable of establishing that he held an honest and reasonable, but mistaken, belief that the complainant had given her consent to sexual intercourse – whether it was necessary for the learned trial judge to direct the jury to consider whether s 24 Criminal Code had been excluded and, if so, whether her Honour’s directions on s 24 Criminal Code were insufficient
CRIMINAL LAW – EVIDENCE – HEARSAY – where the Crown called evidence at the appellant’s trial that sought to establish that DNA extracted from the vagina of one of the complainants was highly likely to have been placed there by the appellant – where evidence was given by a forensic scientist as to the probability that the DNA present in the vaginal swab had not come from the appellant – where the appellant submits that the evidence given by the forensic scientist was inadmissible hearsay evidence because she herself had not performed any of the DNA tests upon which she reached her conclusion as to the probability of the sample not being from the appellant – where a certificate was tendered pursuant to s 95A Evidence Act at trial setting out the results of the relevant DNA testing in a way that was unintelligible to a lay reader – where the oral evidence…
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- R v Makary [2018] QCA 257
- Case
- [2018] QCA 257
- Decision Date
CaseChat Overview and Summary
The primary legal issues the court had to address were whether the trial judge's directions to the jury regarding the application of section 24 of the Criminal Code were adequate, whether certain DNA evidence was properly admitted, whether the trial judge correctly directed the jury on the alternative offence of attempted rape, whether the appellant's legal counsel was competent, whether the counts should have been tried separately, and whether the verdicts and sentence were reasonable. The court considered the appellant's arguments regarding potential misdirections and errors in the trial process and evaluated the evidence to determine if the jury's verdicts were reasonable and if the sentence was appropriate.
The court found that the trial judge's directions on section 24 of the Criminal Code were sufficient, and the DNA evidence was properly admitted as it was not hearsay but rather expert testimony explaining a certificate. The court also found no error in the trial judge's direction on the alternative offence of attempted rape. The court determined that the appellant's counsel's decision not to pursue certain lines of questioning did not amount to incompetence. The court further held that the joinder of counts did not result in a miscarriage of justice and that the jury's verdicts, supported by compelling evidence, were reasonable. Lastly, the court held that although the sentencing judge considered impermissible factors, the sentence was appropriate given the nature and circumstances of the offences.
The orders of the court were to dismiss the appeal against conviction, grant leave to appeal against the sentence, and dismiss the appeal against the sentence.
Orders
Orders of the court
1. Appeal against conviction dismissed.
2. Application for leave to appeal against sentence granted.
3. Appeal against sentence dismissed.
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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