R v Mitchell - [1998] QCA 31

[1998] QCA 031

COURT OF APPEAL

DAVIES JA
PINCUS JA
BYRNE J

CA No 355-57 of 1997

THE QUEEN

GREGORY JOHN MITCHELL Appellant

BRISBANE

..DATE 13/02/98

JUDGMENT

DAVIES JA: The appellant was tried in the District Court on 21 August last year together with two others, Mark John Mason and Stanley James Saunders, who were with him convicted of a number of offences. They also appealed against their convictions and those appeals have been dismissed. They also sought leave to appeal against their sentences and to a limited extent only, to which I will refer later, their applications were granted and their appeals were allowed.

The appellant here was convicted of the following offences: assault occasioning bodily harm in company; four counts of rape; two of indecent assault with an aggravating circumstance which was anal intercourse; three of indecent assault with an aggravating circumstance, that being his penis coming into contact with the mouth of the complainant; and indecent assault. I pause there to say that the appellant's other co-offenders were also tried and convicted of those offences. But the appellant was then convicted of a further count of indecent assault with an aggravating circumstance, that being his penis coming into contact with the mouth of the complainant and a further count of indecent assault with an aggravating circumstance, that being anal intercourse.

The appellant was sentenced to 15 years imprisonment on each of the rape counts, 12 years for each of the indecent assaults by anal intercourse, 10 years imprisonment for each count of indecent assault by oral intercourse, three years for the indecent assault, and 12 months for the count of assault occasioning bodily harm in custody. 337 days in presentence custody were declared to be time served under the sentence.

A declaration was also made that the appellant was a serious violent offender and I will return to that question a little later. The circumstances of the complaint, as appeared from the complainant and other Crown witnesses, were as follows.

The complainant knew the appellant and his co-offenders. On the evening of 19 September 1996 and the early hours of the following morning she was drinking with some people including those three at a number of nightclubs in Rockhampton. In the early hours of 20 September, her boyfriend, a man called John Stephens, was arrested for drink driving and she told some people early that morning that she was going to the watch-house to see him.

The appellant, Mitchell, offered to drive her and she got into Mitchell's car with Mitchell and the other two co-offenders, Saunders and Mason. The complainant invited another person to join her but Mitchell said, "Don't worry about him, we will take you around and that."

She was not driven to the watch-house. The car was, first of all, driven to a Mobil service station. The complainant said she felt uneasy at that point and went to the ladies toilet. When she came out, the car had been driven around to…

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 Mitchell

Details

AGLC: R v Mitchell [1998] QCA 31
Case: [1998] QCA 31
Decision Date: 13/02/1998

CaseChat Overview and Summary

The case of R v Mitchell was heard in the Court of Appeal, where the appellant, Gregory John Mitchell, was appealing against his convictions and sentences for various offences including assault occasioning bodily harm, rape, and indecent assault. The trial took place in the District Court where Mitchell and his co-offenders were convicted and sentenced to various terms of imprisonment. The appeal against the conviction focused on the fairness of the summing-up by the trial judge, the consistency of the medical evidence with the nature of the assault, and the jury's ability to reach a verdict. The appeal against sentence focused on the applicability of Part 9A of the Penalties and Sentences Act 1992 to the offences committed.
The court found that the summing-up by the trial judge was fair and balanced, taking into account the extensive defence submissions. The court also found that the medical evidence was consistent with the version of events provided by the complainant, and that there was no basis for concluding that the verdict was unsafe. The court further found that the trial judge's description of the jury's ability to reach a verdict was accurate and did not impact the result of the case. The court allowed the appeal against sentence to the extent of setting aside the declaration that the offences were serious violent offences, in line with the previous decision in The Queen v. Mason and Saunders.

This case highlights the importance of a fair and balanced summing-up by the trial judge, the consistency of medical evidence with the version of events provided by the complainant, and the applicability of legislation to the offences committed. The court's decision in this case provides guidance on these issues and will be of relevance to practising lawyers in similar cases.

Orders