R v Menk - [2013] QCA 367

SUPREME COURT OF QUEENSLAND

CITATION:

R v Menk [2013] QCA 367

PARTIES:

R
v
MENK, Anthony Ian
(appellant)

FILE NO/S:

CA No 170 of 2013
DC No 14 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Roma

DELIVERED ON:

10 December 2013

DELIVERED AT:

Brisbane

HEARING DATE:

22 November 2013

JUDGES:

Holmes and Muir JJA and Applegarth J
Separate reasons for judgment of each member of the Court, Muir JA and Applegarth J concurring as to the order made, Holmes JA dissenting

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where, following a trial, the appellant was convicted of one count of burglary and two counts of indecent treatment of a child – where the appellant and the 15 year old complainant resided in adjoining rooms at a hotel in Roma – where the appellant had previously expressed a desire to “go further” with the complainant – where, on the date of the subject incidents, the appellant had entered the complainant’s room, applied cream to her arms, shoulders and back and rubbed her stomach – where the complainant later awoke to an intruder rubbing her stomach in the same manner in which the appellant had done so earlier – where the complainant pretended to be asleep throughout the subject offences – where the complainant immediately recognised the intruder’s voice as that of the appellant – where the appellant’s DNA was found on the complainant’s right breast – where the appellant contends that the verdict was unreasonable and insupportable due to “paltry” evidence of identification – whether the verdict was unreasonable or insupportable having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL DISMISSED – where the appellant submits that the trial judge’s Domican direction was inadequate in that it did not specify the matters the jury needed to consider in assessing the identification evidence – where the appellant submits that the trial judge should have identified: the fact that the complainant was asleep at the commencement of the offending conduct; the fact that the complainant’s eyes remained closed in a darkened room; the possibility that the complainant panicked; the fleeting basis on which the complainant heard the intruder speak; the lack of any distinctive quality to the intruder’s voice; the uncertainty the complainant displayed in cross-examination; and the lack of detail of the rubbing – where defence counsel did not seek any redirection in this regard – whether the trial judge erred in failing to direct the jury adequately on the issue of identification

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL DISMISSED – where the appellant’s DNA was found on the complainant’s right breast – where the trial judge told the jury that the DNA…

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 Menk

Details

AGLC: R v Menk [2013] QCA 367
Case: [2013] QCA 367
Decision Date: 10 December 2013

CaseChat Overview and Summary

In the case of R v Menk, the appellant was convicted of one count of burglary and two counts of indecent treatment of a child. The appellant and the 15-year-old complainant resided in adjoining rooms at a hotel in Roma. The appellant had previously expressed a desire to "go further" with the complainant. On the date of the subject incidents, the appellant entered the complainant's room, applied cream to her arms, shoulders, and back, and rubbed her stomach. The complainant pretended to be asleep throughout the offences and later awoke to an intruder rubbing her stomach in the same manner as the appellant had done earlier. The complainant immediately recognised the intruder's voice as that of the appellant, and the appellant's DNA was found on the complainant's right breast. The appellant appealed against the verdict, contending it was unreasonable and insupportable due to "paltry" evidence of identification.

The legal issues in this appeal revolved around whether the verdict was unreasonable or insupportable in light of the evidence presented. The appellant argued that the trial judge's direction to the jury on the issue of identification was inadequate. Specifically, the appellant contended that the trial judge should have directed the jury to consider various factors, such as the complainant being asleep at the commencement of the offending conduct, the possibility that the complainant panicked, and the lack of distinctive quality to the intruder's voice. Additionally, the appellant argued that the trial judge should have provided a circumstantial evidence direction on the DNA evidence, explaining that the jury could only use the DNA evidence as proof of guilt if they could exclude all reasonable hypotheses consistent with innocence.

The court dismissed the appeal, holding that the verdict was not unreasonable or insupportable. The court found that the trial judge's Domican direction was sufficient, as it adequately addressed the factors the jury needed to consider in assessing the identification evidence. The court also held that the trial judge's direction on the DNA evidence was appropriate, as it allowed the jury to consider the evidence in the context of all other evidence presented. The court concluded that the appellant's arguments did not demonstrate that the verdict was unreasonable or insupportable, and therefore the appeal was dismissed.

Orders

Orders of the court

Appeal 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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CITATION:	R v Menk [2013] QCA 367
PARTIES:	R v MENK, Anthony Ian (appellant)
FILE NO/S:	CA No 170 of 2013 DC No 14 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Roma
DELIVERED ON:	10 December 2013
DELIVERED AT:	Brisbane
HEARING DATE:	22 November 2013
JUDGES:	Holmes and Muir JJA and Applegarth J Separate reasons for judgment of each member of the Court, Muir JA and Applegarth J concurring as to the order made, Holmes JA dissenting
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where, following a trial, the appellant was convicted of one count of burglary and two counts of indecent treatment of a child – where the appellant and the 15 year old complainant resided in adjoining rooms at a hotel in Roma – where the appellant had previously expressed a desire to “go further” with the complainant – where, on the date of the subject incidents, the appellant had entered the complainant’s room, applied cream to her arms, shoulders and back and rubbed her stomach – where the complainant later awoke to an intruder rubbing her stomach in the same manner in which the appellant had done so earlier – where the complainant pretended to be asleep throughout the subject offences – where the complainant immediately recognised the intruder’s voice as that of the appellant – where the appellant’s DNA was found on the complainant’s right breast – where the appellant contends that the verdict was unreasonable and insupportable due to “paltry” evidence of identification – whether the verdict was unreasonable or insupportable having regard to the evidence CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL DISMISSED – where the appellant submits that the trial judge’s Domican direction was inadequate in that it did not specify the matters the jury needed to consider in assessing the identification evidence – where the appellant submits that the trial judge should have identified: the fact that the complainant was asleep at the commencement of the offending conduct; the fact that the complainant’s eyes remained closed in a darkened room; the possibility that the complainant panicked; the fleeting basis on which the complainant heard the intruder speak; the lack of any distinctive quality to the intruder’s voice; the uncertainty the complainant displayed in cross-examination; and the lack of detail of the rubbing – where defence counsel did not seek any redirection in this regard – whether the trial judge erred in failing to direct the jury adequately on the issue of identification CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL DISMISSED – where the appellant’s DNA was found on the complainant’s right breast – where the trial judge told the jury that the DNA…