R v Pax - [2000] QCA 136

SUPREME COURT OF QUEENSLAND

CITATION: R v PAX [2000] QCA 136

PARTIES: R
v
PAX
(appellant)

FILE NO/S: CA No 396 of 1999
DC No 1618 of 1999

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction

ORIGINATING COURT:
District Court at Brisbane

DELIVERED ON: 18 April 2000

DELIVERED AT: Brisbane

HEARING DATE: 13 April 2000

JUDGES: de Jersey CJ, Davies JA, Helman J
Judgment of the Court

ORDER: Appeal against conviction on count 1 dismissed.
Appeals against convictions on counts 2 and 3 allowed.
Convictions and sentences on counts 2 and 3 set aside.
Orders for new trials upon the charges in those counts.
Notices to Crown witnesses extended accordingly.

CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – appellant convicted on three counts of having raped his step-daughter – whether trial judge erroneously failed to direct the jury in relation to s 24 Criminal Code – whether appellant's persistent claims of consent inconsistent with the possibility of mistaken belief to this end – whether s 24 could have proper operation in light of the complainant's evidence of fear engendered in her by the appellant's history of violence

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – whether trial judge erred in directing the jury that actual lack of consent need not have been communicated to the accused – whether communication necessary

Criminal Code s 24, s 347

R v IA Shaw [1996] 1 Qd R 641, applied
R v P (1998) 104 A Crim R 220, referred to

COUNSEL: S Hamlyn-Harris for the appellant
N Weston for the respondent

SOLICITORS: Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

THE COURT: The appellant was convicted in the District Court on three counts of having raped his stepdaughter. The first offence occurred between April and July 1983 when the complainant was about 12 ½ years old. The second occurred in December 1988 when she was 18. The third occurred in March or April 1989 also when she was 18.

With respect to the first offence, the complainant gave evidence that the appellant had sexual intercourse with her notwithstanding her telling him to “stop”, and saying “don’t do that”; he said: “If you have sex with me I will stop touching you”, to which she responded, “No”. The appellant gave evidence at the trial denying that this offence occurred. The jury were properly instructed. Mr Hamlyn Harris, who appeared for the appellant, rightly conceded that there was no tenable ground of appeal in respect of the conviction on the first count. The appeal against that conviction should be dismissed.

The challenge to the convictions on the second and third counts concerns whether the learned trial judge erred in not directing the jury in relation to s 24 of the Criminal Code, and in directing…

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 Pax

Details

AGLC: R v Pax [2000] QCA 136
Case: [2000] QCA 136
Decision Date: 18 April 2000

CaseChat Overview and Summary

In the case of R v Pax, the appellant was convicted on three counts of having raped his step-daughter. The dispute in this appeal concerns the sufficiency of directions given by the trial judge to the jury, specifically in relation to section 24 of the Criminal Code, which pertains to the concept of consent in the context of sexual offences. The appellant argued that the trial judge failed to adequately direct the jury on the legal standards required to consider the possibility of mistaken belief in consent, especially in light of his persistent claims of consent and the complainant's history of fear due to his violent behaviour. This case was brought before the court to determine whether the trial judge's directions to the jury were erroneous and if these errors warranted a new trial.

The legal issues at the heart of this appeal revolve around the interpretation and application of section 24 of the Criminal Code. The appellant contended that the trial judge did not sufficiently instruct the jury on how to approach the concept of mistaken belief in consent, which could have been a mitigating factor given the complainant's fear and the appellant's history of violence. Additionally, the appellant argued that the trial judge incorrectly informed the jury that actual lack of consent need not have been communicated to the accused, questioning the necessity of such communication in the context of the offence. The court was tasked with examining these points to determine whether the trial judge's instructions were inadequate and whether such inadequacies warranted a new trial.

In addressing the appellant's arguments, the court found that the trial judge did indeed fail to adequately direct the jury regarding the possibility of mistaken belief in consent, particularly in light of the evidence presented. The court determined that the trial judge's omission to instruct the jury on this point was a significant error, as it could have influenced the jury's assessment of the appellant's claims of consent. Furthermore, the court held that the trial judge's direction that actual lack of consent need not have been communicated to the accused was incorrect, and this misdirection was likely to have affected the jury's verdict. As a result, the appeals against the convictions on counts 2 and 3 were allowed, and new trials were ordered for those counts.

The final orders of the court were that the appeal against the conviction on count 1 was dismissed, while the appeals against the convictions on counts 2 and 3 were allowed. The convictions and sentences on counts 2 and 3 were set aside, and new trials were ordered on those charges. The notices to Crown witnesses were extended to accommodate the new trials.

Orders

Orders of the court

Appeal against conviction on count 1 dismissed.

Appeals against convictions on counts 2 and 3 allowed.

Convictions and sentences on counts 2 and 3 set aside.

Orders for new trials upon the charges in those counts.

Notices to Crown witnesses extended accordingly.

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 PAX [2000] QCA 136
PARTIES:	R v PAX (appellant)
FILE NO/S:	CA No 396 of 1999 DC No 1618 of 1999
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	18 April 2000
DELIVERED AT:	Brisbane
HEARING DATE:	13 April 2000
JUDGES:	de Jersey CJ, Davies JA, Helman J Judgment of the Court
ORDER:	Appeal against conviction on count 1 dismissed. Appeals against convictions on counts 2 and 3 allowed. Convictions and sentences on counts 2 and 3 set aside. Orders for new trials upon the charges in those counts. Notices to Crown witnesses extended accordingly.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – appellant convicted on three counts of having raped his step-daughter – whether trial judge erroneously failed to direct the jury in relation to s 24 Criminal Code – whether appellant's persistent claims of consent inconsistent with the possibility of mistaken belief to this end – whether s 24 could have proper operation in light of the complainant's evidence of fear engendered in her by the appellant's history of violence CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – whether trial judge erred in directing the jury that actual lack of consent need not have been communicated to the accused – whether communication necessary Criminal Code s 24, s 347 R v IA Shaw [1996] 1 Qd R 641, applied R v P (1998) 104 A Crim R 220, referred to
COUNSEL:	S Hamlyn-Harris for the appellant N Weston for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent