R v Murdock and Williams - [2005] QCA 168

SUPREME COURT OF QUEENSLAND

CITATION:

R v Murdock & Williams [2005] QCA 168

PARTIES:

R
v
MURDOCK, Dereck John
(appellant)

R
v
WILLIAMS, Wayne Lewis
(appellant)

FILE NO/S:

CA No 297 of 2004
CA No 318 of 2004
DC No 23 of 2004
DC No 24 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Bowen

DELIVERED ON:

20 May 2005

DELIVERED AT:

Brisbane

HEARING DATE:

15 March 2005

JUDGES:

Jerrard JA, Cullinane and Jones JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

1. In CA No 297 of 2004 the appeal against conviction is dismissed
2. In CA No 318 of 2004 the appeal against conviction is dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – appellants convicted of rape where the complainant asserted she was so affected by alcohol and cannabis that she was unable to consent – appellants claimed they had obtained the complainant’s consent prior to sexual intercourse – complainant denied any such conversation taking place – both appellants knew the complainant had ingested alcohol and cannabis – whether on the whole of the evidence it was open to the jury to find a lack of consent by the complainant

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – prosecutor obtained leave to cross-examine a prosecution witness regarding a prior statement – defence counsel did not object in the context of allowing the prosecutor to interview the witness – judge apparently misunderstood this lack of objection as authorising cross-examination – evidence admitted in prosecutor’s cross-examination entirely consistent with defence case – whether prosecutor’s suggestion that witness had given conflicting evidence at trial and in statement tended to discredit the witness – whether judge erred in permitting cross-examination – whether that error caused a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – PRESENTATION OF DEFENCE CASE AND CROWN CASE AND REVIEW OF EVIDENCE – defence case put possibility that consensual sex occurred which the complainant subsequently regretted and therefore exaggerated her level of intoxication – whether the judge erred in not putting the defence of mistake of fact to the jury

Criminal Code 1899 (Qld), s 24, s 668E(1)
Evidence Act 1977 (Qld), s 17

Dhanhoa v R (2003) 199 ALR 547, applied
MFA v R (2002) 213 CLR 606, cited

COUNSEL:

J D Henry for the appellants
R G Martin SC for the respondent

SOLICITORS:

Legal Aid Queensland for the appellants
Director of Public Prosecutions (Queensland) for the respondent

JERRARD JA: On 23 August 2004 Wayne Williams was convicted in the District Court on two…

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 Murdock and Williams

Details

AGLC: R v Murdock and Williams [2005] QCA 168
Case: [2005] QCA 168
Decision Date: 20 May 2005

CaseChat Overview and Summary

The appeal before the court involved two appellants, Murdock and Williams, who were convicted of the crime of rape. The complainant had asserted that she was so affected by alcohol and cannabis that she was unable to give consent, while the appellants argued that they had obtained her consent prior to engaging in sexual intercourse. The trial judge, in this case, had ruled against the appellants, and they sought to appeal their convictions. The primary legal issues before the court were whether the jury's verdict was unreasonable or insupportable, whether the admission of certain evidence constituted an error, and whether the judge had misdirected the jury regarding the presentation of the defence case.

In addressing the first issue, the court considered the evidence presented at trial, which included the complainant's testimony that she was too intoxicated to consent, and the appellants' claim that they had obtained her consent. The court found that, on the whole of the evidence, it was open to the jury to conclude that the complainant did not consent to the sexual activity. The court was not satisfied that the verdict was unreasonable or insupportable, and therefore dismissed the appeal on this ground. Regarding the second issue, the court examined the admission of evidence regarding a prior statement made by a prosecution witness. The court found that the evidence was entirely consistent with the defence case and did not unduly prejudice the appellants. The court held that the judge did not err in permitting the cross-examination, and that any error did not cause a miscarriage of justice. Finally, the court considered whether the judge had misdirected the jury regarding the defence of mistake of fact. The court found that the judge did not err in this regard, as the evidence did not support a submission that the appellants honestly and reasonably believed the complainant consented to the sexual activity.

The final orders of the court were to dismiss both appellants' appeals against their convictions. The court held that the verdicts were not unreasonable or insupportable, that the admission of evidence did not constitute an error, and that the judge did not misdirect the jury. As a result, the appellants' convictions were upheld, and their appeals were dismissed.

Orders

Orders of the court

1. In CA No 297 of 2004 the appeal against conviction is dismissed

2. In CA No 318 of 2004 the appeal against conviction is dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Murdock & Williams [2005] QCA 168
PARTIES:	R v MURDOCK, Dereck John (appellant) R v WILLIAMS, Wayne Lewis (appellant)
FILE NO/S:	CA No 297 of 2004 CA No 318 of 2004 DC No 23 of 2004 DC No 24 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Bowen
DELIVERED ON:	20 May 2005
DELIVERED AT:	Brisbane
HEARING DATE:	15 March 2005
JUDGES:	Jerrard JA, Cullinane and Jones JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	1. In CA No 297 of 2004 the appeal against conviction is dismissed 2. In CA No 318 of 2004 the appeal against conviction is dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – appellants convicted of rape where the complainant asserted she was so affected by alcohol and cannabis that she was unable to consent – appellants claimed they had obtained the complainant’s consent prior to sexual intercourse – complainant denied any such conversation taking place – both appellants knew the complainant had ingested alcohol and cannabis – whether on the whole of the evidence it was open to the jury to find a lack of consent by the complainant CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – prosecutor obtained leave to cross-examine a prosecution witness regarding a prior statement – defence counsel did not object in the context of allowing the prosecutor to interview the witness – judge apparently misunderstood this lack of objection as authorising cross-examination – evidence admitted in prosecutor’s cross-examination entirely consistent with defence case – whether prosecutor’s suggestion that witness had given conflicting evidence at trial and in statement tended to discredit the witness – whether judge erred in permitting cross-examination – whether that error caused a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – PRESENTATION OF DEFENCE CASE AND CROWN CASE AND REVIEW OF EVIDENCE – defence case put possibility that consensual sex occurred which the complainant subsequently regretted and therefore exaggerated her level of intoxication – whether the judge erred in not putting the defence of mistake of fact to the jury Criminal Code 1899 (Qld), s 24, s 668E(1) Evidence Act 1977 (Qld), s 17 Dhanhoa v R (2003) 199 ALR 547, applied MFA v R (2002) 213 CLR 606, cited
COUNSEL:	J D Henry for the appellants R G Martin SC for the respondent
SOLICITORS:	Legal Aid Queensland for the appellants Director of Public Prosecutions (Queensland) for the respondent