SUPREME COURT OF QUEENSLAND
CITATION:
R v Phillips [2009] QCA 57
PARTIES:
R
v
PHILLIPS, Bradley John
(appellant/applicant)FILE NO/S:
CA No 84 of 2008
DC No 139 of 2007DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction & Sentence
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
20 March 2009
DELIVERED AT:
Brisbane
HEARING DATE:
2 December 2008
JUDGES:
Holmes JA, White AJA and McMurdo J
Separate reasons for judgment of each member of the Court, Holmes JA and White AJA concurring as to the orders made, McMurdo J dissentingORDERS:
1. Appeal against conviction in respect of counts 1 and 3 dismissed;
2. In respect of count 4, appeal against conviction allowed, conviction of rape set aside and conviction of unlawful carnal knowledge substituted;
3. In respect of count 4, sentence of two years imprisonment imposed, and a period of 378 days from 8 March 2008 to 20 March 2009 declared to be imprisonment already served under that sentence;
4. Endorsement on District Court Indictment No 139 of 2007 amended in respect of counts 1 and 3 by deleting the order for imprisonment for a period of two years and six months and substituting an order for imprisonment of two years;
5. Verdict and judgment record amended to reflect the foregoing orders.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – OTHER MATTERS – where appellant went to trial on four counts of rape – where, on counts 1 and 3, appellant acquitted of rape but convicted of the lesser alternative of unlawful carnal knowledge; on count 2, appellant acquitted absolutely; and, on count 4, appellant convicted of rape – where appellant appealed his conviction and sentence – where, after Crown prosecutor finished addressing the jury, trial judge’s associate gave the prosecutor a ‘thumbs up’ signal and mouthed words of encouragement – where a juror or jurors may have seen the conduct attributed to the associate – whether conduct attributed to the associate influenced decision of jury – whether appellant deprived of a fair trial
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF TRIAL JUDGE – where trial judge indicated to jury they were entitled to take as long as they wished to reach a verdict, but he could discharge them from doing so, and proposed to discharge them in a short time – whether jury felt pressure to reach verdicts – whether miscarriage of justice
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where consent was in issue – where, in relation to counts 1 and 3, complainant gave evidence that she resisted the appellant but gave no such evidence in relation to counts 2 and 4 – where trial judge directed jury on the excuse of mistake of fact as to consent on counts 2 and 4 only – where jury acquitted of rape on counts 1 and 3 in favour of…
Continue reading R v Phillips
Sign in free to access the full text
- AGLC
- R v Phillips [2009] QCA 57
- Case
- [2009] QCA 57
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the conduct attributed to the trial judge's associate influenced the jury's decision, and whether the conviction of rape on count 4 was inconsistent with the jury’s verdicts on counts 1 and 3, where the jury found the appellant guilty of the lesser offence of unlawful carnal knowledge instead of rape. The court also needed to determine if the sentence imposed on count 4 should be altered in light of the substituted conviction.
The court found that the conduct of the trial judge’s associate did not influence the jury's decision, as there was no evidence that the conduct had any impact on the jury. However, the court did find that the conviction of rape on count 4 was inconsistent with the jury’s acquittals on counts 1 and 3 in favour of convictions of unlawful carnal knowledge. The court noted that the jury acquitted the appellant of rape on counts 1 and 3 and convicted him of unlawful carnal knowledge, which suggests they found issues with the appellant's claim of consent on those counts. The inconsistency in the jury's verdicts led to the conclusion that the conviction on count 4 was unreasonable. The court substituted the conviction of rape on count 4 with a conviction of unlawful carnal knowledge and adjusted the sentence accordingly.
The court ordered that the appeal against the convictions on counts 1 and 3 be dismissed, while the appeal against the conviction on count 4 was allowed. The conviction of rape on count 4 was set aside, and the conviction of unlawful carnal knowledge was substituted. The sentence on count 4 was set at two years imprisonment, with credit for time already served. The records were amended to reflect these changes.
Orders
Orders of the court
1. Appeal against conviction in respect of counts 1 and 3 dismissed;
2. In respect of count 4, appeal against conviction allowed, conviction of rape set aside and conviction of unlawful carnal knowledge substituted;
3. In respect of count 4, sentence of two years imprisonment imposed, and a period of 378 days from 8 March 2008 to 20 March 2009 declared to be imprisonment already served under that sentence;
4. Endorsement on District Court Indictment No 139 of 2007 amended in respect of counts 1 and 3 by deleting the order for imprisonment for a period of two years and six months and substituting an order for imprisonment of two years;
5. Verdict and judgment record amended to reflect the foregoing orders.
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
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.