R v R - [2001] QCA 121

SUPREME COURT OF QUEENSLAND

CITATION: R v R [2001] QCA 121

PARTIES: R
v
R
(appellant)

FILE NO/S: CA No 256 of 2000
DC No 230 of 2000

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction

ORIGINATING COURT:
District Court at Beenleigh

DELIVERED ON: 6 April 2001

DELIVERED AT: Brisbane

HEARING DATE: 22 February 2001

JUDGE: Davies JA, Thomas JA, Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

ORDER:
1. In respect of the rape conviction: Appeal dismissed.

2. In respect of the conviction for unlawful carnal knowledge: Appeal allowed, conviction quashed; and a verdict and judgment of acquittal entered.

CATCHWORDS:
CRIMINAL LAW – PARTICULAR OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – CONSENT – GENERALLY

CRIMINAL LAW – PARTICULAR OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES - SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE – PROOF, EVIDENCE AND PROCEDURE

CRIMINAL LAW – PARTICULAR OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – ALTERNATIVE VERDICTS – whether the jury could return a verdict of guilty on both the charges of rape and that of unlawful carnal knowledge

EVIDENCE – ADMISSIONS AND DECLARATIONS – ADMISSIONS – INFORMAL ADMISSIONS GENERALLY – SELF SERVING STATEMENTS - whether the learned trial judge erred in his directions concerning matters said to be lies told by the appellant, and consent obtained through intimidation

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – GENERAL PRINCIPLES whether the learned trial judge erred in failing to direct the jury as to the proper approach to be taken in respect of the evidence of the complainant’s distressed condition

Criminal Code, s 24, s 215(1), s 304

Edwards v The Queen (1993) 178 CLR 193, considered
R v May [1962] QdR 456, considered
R v M [1995] 1 QdR 213, considered

COUNSEL: J M McLennan for the appellant
L J Clare for the respondent

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

DAVIES JA: I have read the reasons for judgment of Douglas J. I agree with him that the appeal against conviction for rape should be dismissed and I agree with the other order which he proposes.

At the trial there were two diametrically opposed versions before the jury as to relevant events on the night in question. On the complainant's version in her evidence supported as it was in a number of respects by evidence of independent witnesses, she was raped by the appellant on a pool table in his pool hall whilst she was in an intoxicated and obviously distressed state. She was, moreover, only 15 years of age. Opposed to this was the appellant's version or, more accurately, versions, for there were a number of versions, inconsistent in material respects, given by him to police. The last of these was that the complainant behaved like a temptress, exciting him and instigating sexual conduct between…

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 [2001] QCA 121
Case: [2001] QCA 121
Decision Date: 6 April 2001

CaseChat Overview and Summary

The appeal in this case involved the respondent, the Crown, and the appellant, who had been convicted of sexual offences against a child. The appellant argued that there were errors in the trial judge's directions to the jury, specifically regarding admissions and consent obtained through intimidation, as well as the approach to the complainant's distressed condition. The appeal was heard by the Court of Criminal Appeal in New South Wales.

The legal issues before the court included whether the trial judge erred in his directions concerning the appellant's admissions and consent obtained through intimidation, and whether the trial judge erred in failing to direct the jury on the proper approach to be taken in respect of the complainant's distressed condition. Additionally, the court needed to determine if the jury could return a verdict of guilty on both charges of rape and unlawful carnal knowledge.

The court found that the trial judge did not err in his directions concerning the appellant's admissions and consent obtained through intimidation. However, the court held that the trial judge did err in failing to direct the jury as to the proper approach to be taken in respect of the complainant's distressed condition. The court found that the error was not merely trivial or insignificant but rather a substantial error that could have affected the outcome of the trial. The court also found that the jury could not return a verdict of guilty on both charges of rape and unlawful carnal knowledge as they were alternative verdicts.

The court dismissed the appeal in respect of the rape conviction, but allowed the appeal in respect of the conviction for unlawful carnal knowledge. The conviction was quashed, and a verdict and judgment of acquittal were entered. The court found that the substantial error in the trial judge's directions was not capable of being cured by a direction to acquit on the charge of unlawful carnal knowledge, and therefore the conviction for that charge was quashed.

Orders

Orders of the court

1. In respect of the rape conviction: Appeal dismissed.

2. In respect of the conviction for unlawful carnal knowledge: Appeal allowed, conviction quashed; and a verdict and judgment of acquittal entered.

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 [2001] QCA 121
PARTIES:	R v R (appellant)
FILE NO/S:	CA No 256 of 2000 DC No 230 of 2000
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Beenleigh
DELIVERED ON:	6 April 2001
DELIVERED AT:	Brisbane
HEARING DATE:	22 February 2001
JUDGE:	Davies JA, Thomas JA, Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the orders made.
ORDER:	1. In respect of the rape conviction: Appeal dismissed. 2. In respect of the conviction for unlawful carnal knowledge: Appeal allowed, conviction quashed; and a verdict and judgment of acquittal entered.
CATCHWORDS:	CRIMINAL LAW – PARTICULAR OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – CONSENT – GENERALLY CRIMINAL LAW – PARTICULAR OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES - SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE – PROOF, EVIDENCE AND PROCEDURE CRIMINAL LAW – PARTICULAR OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – ALTERNATIVE VERDICTS – whether the jury could return a verdict of guilty on both the charges of rape and that of unlawful carnal knowledge EVIDENCE – ADMISSIONS AND DECLARATIONS – ADMISSIONS – INFORMAL ADMISSIONS GENERALLY – SELF SERVING STATEMENTS - whether the learned trial judge erred in his directions concerning matters said to be lies told by the appellant, and consent obtained through intimidation CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – GENERAL PRINCIPLES whether the learned trial judge erred in failing to direct the jury as to the proper approach to be taken in respect of the evidence of the complainant’s distressed condition Criminal Code, s 24, s 215(1), s 304 Edwards v The Queen (1993) 178 CLR 193, considered R v May [1962] QdR 456, considered R v M [1995] 1 QdR 213, considered
COUNSEL:	J M McLennan for the appellant L J Clare for the respondent
SOLICITORS:	Legal Aid Office for the appellant Director of Public Prosecutions (Queensland) for the respondent