R v R - [2000] QCA 27

SUPREME COURT OF QUEENSLAND

CITATION: R v R [2000] QCA 27

PARTIES: R
v
R
(applicant/appellant)

FILE NO/S: CA No 240 of 1999
DC No 299 of 1998

DIVISION: Court of Appeal

PROCEEDING: Appeal against conviction
Application for leave to appeal against sentence

ORIGINATING COURT:
District Court at Cairns

DELIVERED ON: 15 February 2000

DELIVERED AT: Brisbane

HEARING DATE: 12 October 1999

JUDGES: McMurdo P, Davies JA, Jones J
Separate reasons for judgment of each member of the Court; Davies JA and Jones J concurring as to the orders made, McMurdo P dissenting as to the orders made.

ORDER: Appeal against conviction dismissed.
Application for leave to appeal against sentence refused.

CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – WHERE GROUNDS FOR INTERFERENCE WITH VERDICT – PARTICULAR CASES - WHERE APPEAL DISMISSED – sexual offences against 10 year old daughter – jury having difficulty reaching verdict – whether judge's direction may have pressured jury to compromise

Black v The Queen (1993) 179 CLR 44, applied
Jones v The Queen (1997) 191 CLR 439, applied

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – appellant found guilty of indecent dealing and like offences with 10 year old daughter – whether guilty verdicts inconsistent with acquittal on other counts – whether no reasonable jury applying mind properly to facts could have arrived at conclusion of guilt

Mackenzie v The Queen (1996) 190 CLR 348, applied

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – whether judge erred in allowing appellant's prior convictions for sexual assault against same complainant to go before the jury

Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106, distinguished
R v B (1992) 175 CLR 599, applied
R v Knuth CA No 64 of 1998, 23 June 1998, applied
R v White CA No 349 of 1997, 21 November 1997, applied

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES – whether sentence of five years imprisonment manifestly excessive

R v Fong CA No 124 of 1993, 18 August 1993, considered
R v Williams CA No 238 of 1990, 26 April 1991, considered

COUNSEL: Mr G Lynham for the applicant/appellant
Mr R G Martin for the respondent

SOLICITORS: Thomas Stevens & Company for the appellant
Director of Public Prosecutions (Queensland) for the respondent

McMURDO P: The appellant was charged with six counts of indecent dealing with a child…

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 R

Details

AGLC: R v R [2000] QCA 27
Case: [2000] QCA 27
Decision Date: 15 February 2000

CaseChat Overview and Summary

The appeal was against a conviction for sexual offences against the appellant's 10-year-old daughter. The jury had difficulty reaching a verdict, and the appellant argued that the trial judge's direction may have pressured the jury to compromise. The court of appeal was required to determine if the judge's direction had misled the jury or failed to direct them properly. The appeal against the conviction was dismissed, and the application for leave to appeal against sentence was refused.

The legal issues before the court involved whether the trial judge's direction to the jury constituted a misdirection or a non-direction that warranted interference with the verdict. The appellant's counsel argued that the judge's direction, which suggested that the jury should not allow a reasonable doubt to stand in the way of a verdict if they were satisfied beyond reasonable doubt, may have pressured the jury to compromise. The prosecution contended that the direction was proper and within the bounds of the law. The court had to determine whether the direction amounted to a misdirection or non-direction that had a significant effect on the jury's decision-making process.

The court found that the trial judge's direction, while not ideal, did not constitute a misdirection or non-direction that warranted interference with the verdict. The judge had carefully considered the circumstances of the case, including the difficulty the jury was experiencing in reaching a verdict. The court held that the direction was within the bounds of the law and did not amount to a misdirection or non-direction that could justify setting aside the verdict. The appeal against the conviction was dismissed, and the application for leave to appeal against sentence was refused. The appellant remained convicted of the sexual offences against his 10-year-old daughter.

Orders

Orders of the court

Appeal against conviction dismissed.

Application for leave to appeal against sentence refused.

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 R [2000] QCA 27
PARTIES:	R v R (applicant/appellant)
FILE NO/S:	CA No 240 of 1999 DC No 299 of 1998
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against conviction Application for leave to appeal against sentence
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	15 February 2000
DELIVERED AT:	Brisbane
HEARING DATE:	12 October 1999
JUDGES:	McMurdo P, Davies JA, Jones J Separate reasons for judgment of each member of the Court; Davies JA and Jones J concurring as to the orders made, McMurdo P dissenting as to the orders made.
ORDER:	Appeal against conviction dismissed. Application for leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – WHERE GROUNDS FOR INTERFERENCE WITH VERDICT – PARTICULAR CASES - WHERE APPEAL DISMISSED – sexual offences against 10 year old daughter – jury having difficulty reaching verdict – whether judge's direction may have pressured jury to compromise Black v The Queen (1993) 179 CLR 44, applied Jones v The Queen (1997) 191 CLR 439, applied CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – appellant found guilty of indecent dealing and like offences with 10 year old daughter – whether guilty verdicts inconsistent with acquittal on other counts – whether no reasonable jury applying mind properly to facts could have arrived at conclusion of guilt Mackenzie v The Queen (1996) 190 CLR 348, applied CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – whether judge erred in allowing appellant's prior convictions for sexual assault against same complainant to go before the jury Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106, distinguished R v B (1992) 175 CLR 599, applied R v Knuth CA No 64 of 1998, 23 June 1998, applied R v White CA No 349 of 1997, 21 November 1997, applied CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES – whether sentence of five years imprisonment manifestly excessive R v Fong CA No 124 of 1993, 18 August 1993, considered R v Williams CA No 238 of 1990, 26 April 1991, considered
COUNSEL:	Mr G Lynham for the applicant/appellant Mr R G Martin for the respondent
SOLICITORS:	Thomas Stevens & Company for the appellant Director of Public Prosecutions (Queensland) for the respondent