R v Rak

Case [2012] QCA 26 28 February 2012

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SUPREME COURT OF QUEENSLAND

CITATION:

R v RAK [2012] QCA 26

PARTIES:

R
v
RAK
(applicant/appellant)

FILE NO/S:

CA No 7 of 2011
DC No 605 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

28 February 2012

DELIVERED AT:

Brisbane

HEARING DATE:

19 August 2011

JUDGES:

Fraser and White JJA and North J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

The appeal against conviction be dismissed.1.

The application to appeal against sentence is refused.2.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE – OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted upon a verdict of a jury on two counts of indecent dealing with a child under 12 years of age – where the complainant was the appellant’s daughter – where counsel relied upon inconsistency in the account of the time and circumstances of the offence alleged in count 1 as an instance of the unsatisfactory nature of the complainant’s evidence – where the jury had the advantage of seeing the complainant give evidence, of observing her reactions and responses when she was tested – whether it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt

CRIMINAL LAW – APPEAL AGAINST SENTENCE – APPEAL DISMISSED – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the appellant was sentenced to three years’ imprisonment for indecent dealing with parole eligibility after 18 months – where the appellant had shown no remorse, the convictions followed a four day trial which involved extensive cross-examination that the sentencing judge criticised as “vexatious” – whether the sentence was manifestly excessive in all of the circumstances

Evidence Act 1977 (Qld), s 93A

Horan v F [1995] 2 Qd R 490; [1994] QCA 375, cited
Jones v The Queen (1997) 191 CLR 439; [1997] HCA 12, considered
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied
MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited
R v Ashley [2005] QCA 93, cited
R v BAT [2005] QCA 82, applied
R v Crosby [2002] QCA 213, cited
R v FI [2004] QCA 400, cited
R v G; ex parte AG [2001] QCA 158, applied
R v GO; ex parte A-G (Qld) [2004] QCA 453, cited
R v HAQ [2008] QCA 234, cited
R v Naidu [2008] QCA 130, cited
R v O [2001] QCA 40, cited
R v P [2000] 2 Qd R 401 [1999] QCA 411, considered
R v R [2001] QCA 142, considered
R v UA [2007] QCA 41, applied
Suresh v The Queen (1998) 72 ALJR 769; [1998] HCA 23, cited

COUNSEL:

C Chowdhury for the applicant/appellant
M B Lehane for the respondent

SOLICITORS:

Legal Aid Queensland for the…

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 Rak

Details

AGLC: R v Rak [2012] QCA 26
Case: [2012] QCA 26
Decision Date: 28 February 2012

CaseChat Overview and Summary

The appellant was convicted by a jury of two counts of indecent dealing with his daughter, who was under the age of 12 at the time of the offences. The appellant appealed against his conviction on the grounds that the verdict was unreasonable or insupportable having regard to the evidence. Additionally, the appellant sought to appeal against his sentence, arguing that it was manifestly excessive. The appeal was heard in the High Court of Australia.

The legal issues in the appeal revolved around the sufficiency of the evidence to support the jury's verdict of guilt beyond reasonable doubt, and whether the sentence imposed was manifestly excessive. The appellant's counsel argued that the complainant's evidence was inconsistent and unsatisfactory, but the court found that the jury had the advantage of observing the complainant's demeanour and reactions during cross-examination. The court also considered the lack of remorse shown by the appellant and the nature of the offences in determining the sentence.

The High Court found that the jury was entitled to be satisfied beyond reasonable doubt of the appellant's guilt based on the evidence presented, including the complainant's testimony and the appellant's admissions. The court held that the inconsistencies in the complainant's account did not render the verdict unreasonable or unsafe. Furthermore, the court concluded that the sentence of three years' imprisonment with parole eligibility after 18 months was not manifestly excessive, taking into account the serious nature of the offences and the appellant's lack of remorse.

The appeal against conviction was dismissed, and the application to appeal against sentence was refused. The appellant's sentence remains unchanged.

Orders

Orders of the court

The appeal against conviction be dismissed.1.

The application to appeal against sentence is refused.2.

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.

Citations

AGLC Citation

R v Rak [2012] QCA 26

Most Recent Citation

R v WBH [2019] QCA 249

Cases citing this decision · 2 of 2 shown

R v HZG
[2021] QCA 292 Para 30

…the fact that the offence was a “domestic violence offence” was an aggravating feature of the sentence. [43][2001] QCA 40. [44][2007] QCA 41. [45][2012] QCA 26.…
R v WBH
[2019] QCA 249 Para 12

…ent; the sentence is to be served concurrently; and I fix a parole eligibility date of 28 th of April 2019.” Submissions on the sentence [159][2012] QCA 26. [160]AB2 214, lines 27-42.…

View all 2 citing cases →

Cases cited in this decision · 18 of 18 shown

R v Haq
[2008] QCA 234 Para 1

…ars' imprisonment and that a sentence of two years' imprisonment might have properly been imposed.[34] [34] Relying upon R v O [2001] QCA 40; R v HAQ [2008] QCA 234; and R v GO; ex parte A-G (Qld) [2004] QCA 453.…
R v Naidu
[2008] QCA 130 Para 1

…evident care taken by the jury in the deliberation upon the evidence, it cannot be said that there was a "miscarriage of justice". [33] See R v Naidu [2008] QCA 130 at [77] citing Suresh v The Queen (1998) 72 ALJR 769 per Hayne J at [65].…
R v Ua
[2007] QCA 41

…QCA 40, cited R v P [2000] 2 Qd R 401 [1999] QCA 411, considered R v R [2001] QCA 142, considered R v UA [2007] QCA 41, applied Suresh v The Queen (1998) 72 ALJR 769; [1998] HCA 23, cited COUNSEL: C Chowdhury for the applicant/appellant M B Lehane for the respondent SOLICITORS: Legal Aid Queensland for the appl…
R v McMillan
[2005] QCA 93 Para 1

…ered, I conclude that it plainly was open to the jury to be satisfied by reasonable doubt of the appellant’s guilt. [31] See for example R v Ashley [2005] QCA 93, [2] per Williams JA and also R v Crosby [2002] QCA 213 at [16]-[21]; R v FI [2004] QCA 400 at [10]-[19] referred to by Keane JA in his Honour's discus…
R v BAT
[2005] QCA 82 Para 1

…In R v BAT [29] Keane JA (with whom McPherson JA and Douglas J agreed) said[30]: [29][2005] QCA 82. [30] R v BAT [2005] QCA 82 at [27] & [28].…
R v Go; ex parte A-G (Qld)
[2004] QCA 453 Para 1

…ars' imprisonment might have properly been imposed.[34] [34] Relying upon R v O [2001] QCA 40; R v HAQ [2008] QCA 234; and R v GO; ex parte A-G (Qld) [2004] QCA 453.…
R v FI
[2004] QCA 400 Para 1

…f the appellant’s guilt. [31] See for example R v Ashley [2005] QCA 93, [2] per Williams JA and also R v Crosby [2002] QCA 213 at [16]-[21]; R v FI [2004] QCA 400 at [10]-[19] referred to by Keane JA in his Honour's discussion.…
R v Crosby
[2002] QCA 213 Para 1

…o be satisfied by reasonable doubt of the appellant’s guilt. [31] See for example R v Ashley [2005] QCA 93, [2] per Williams JA and also R v Crosby [2002] QCA 213 at [16]-[21]; R v FI [2004] QCA 400 at [10]-[19] referred to by Keane JA in his Honour's discussion.…
R v G; ex parte
[2001] QCA 158

…T [2005] QCA 82, applied R v Crosby [2002] QCA 213, cited R v FI [2004] QCA 400, cited R v G; ex parte AG [2001] QCA 158, applied R v GO; ex parte A-G (Qld) [2004] QCA 453, cited R v HAQ [2008] QCA 234, cited R v Naidu [2008] QCA 130, cited R v O [2001] QCA 40, cited R v P [2000] 2 Qd R 401 [1999] QCA 411, consid…
R v The Queen
[2001] QCA 142

…[2008] QCA 130, cited R v O [2001] QCA 40, cited R v P [2000] 2 Qd R 401 [1999] QCA 411, considered R v R [2001] QCA 142, considered R v UA [2007] QCA 41, applied Suresh v The Queen (1998) 72 ALJR 769; [1998] HCA 23, cited COUNSEL: C Chowdhury for the applicant/appellant M B Lehane for the respondent SOLICITORS:…
R v O
[2001] QCA 40 Para 1

…ghteen months to two years' imprisonment and that a sentence of two years' imprisonment might have properly been imposed.[34] [34] Relying upon R v O [2001] QCA 40; R v HAQ [2008] QCA 234; and R v GO; ex parte A-G (Qld) [2004] QCA 453.…
R v P
[1999] QCA 411

…[2008] QCA 234, cited R v Naidu [2008] QCA 130, cited R v O [2001] QCA 40, cited R v P [2000] 2 Qd R 401 [1999] QCA 411, considered R v R [2001] QCA 142, considered R v UA [2007] QCA 41, applied Suresh v The Queen (1998) 72 ALJR 769; [1998] HCA 23, cited COUNSEL: C Chowdhury for the applicant/appellant M B Lehan…
Suresh v The Queen
[1998] HCA 23

…red R v R [2001] QCA 142, considered R v UA [2007] QCA 41, applied Suresh v The Queen (1998) 72 ALJR 769; [1998] HCA 23, cited COUNSEL: C Chowdhury for the applicant/appellant M B Lehane for the respondent SOLICITORS: Legal Aid Queensland for the applicant/appellant Director of Public Prosecutions (Queensland) f…
Vincent Raymond Jones v The Queen
[1997] HCA 56 Para 1

…different bed and one that was blue.[9] [6] In argument he expressly acknowledged that the same argument was advanced in support of both grounds. [7](1997) 191 CLR 439, in the joint reasons of Gaudron, McHugh and Gummow JJ at 455. [8]See MacKenzie v The Queen (1996) 190 CLR 348 at 367. [9]See AR 15 line 28-38; AR 17…
Jones v The Queen
[1997] HCA 12

…977 (Qld), s 93A Horan v F [1995] 2 Qd R 490; [1994] QCA 375, cited Jones v The Queen (1997) 191 CLR 439; [1997] HCA 12, considered M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited R v Ashley [2005] QCA 93, cited R v BAT [2005] QCA 82, applie…
Mackenzie v The Queen
[1996] HCA 35

…idered M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited R v Ashley [2005] QCA 93, cited R v BAT [2005] QCA 82, applied R v Crosby [2002] QCA 213, cited R v FI [2004] QCA 400, cited R v G; ex parte AG [2001] QCA 158, applied R v GO; ex parte A…
Horan v Ferguson
[1994] QCA 375

…ifestly excessive in all of the circumstances Evidence Act 1977 (Qld), s 93A Horan v F [1995] 2 Qd R 490; [1994] QCA 375, cited Jones v The Queen (1997) 191 CLR 439; [1997] HCA 12, considered M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited R…
M v the Queen
[1994] HCA 63

…, cited Jones v The Queen (1997) 191 CLR 439; [1997] HCA 12, considered M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited R v Ashley [2005] QCA 93, cited R v BAT [2005] QCA 82, applied R v Crosby [2002] QCA 213, cited R v FI [2004] QCA 400, ci…

Legislation cited in this decision · 1

Evidence Act 1977 (Qld)
93A 2 mentions (from Para 1)

CITATION:	R v RAK [2012] QCA 26
PARTIES:	R v RAK (applicant/appellant)
FILE NO/S:	CA No 7 of 2011 DC No 605 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	28 February 2012
DELIVERED AT:	Brisbane
HEARING DATE:	19 August 2011
JUDGES:	Fraser and White JJA and North J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	The appeal against conviction be dismissed.1. The application to appeal against sentence is refused.2.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE – OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted upon a verdict of a jury on two counts of indecent dealing with a child under 12 years of age – where the complainant was the appellant’s daughter – where counsel relied upon inconsistency in the account of the time and circumstances of the offence alleged in count 1 as an instance of the unsatisfactory nature of the complainant’s evidence – where the jury had the advantage of seeing the complainant give evidence, of observing her reactions and responses when she was tested – whether it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt CRIMINAL LAW – APPEAL AGAINST SENTENCE – APPEAL DISMISSED – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the appellant was sentenced to three years’ imprisonment for indecent dealing with parole eligibility after 18 months – where the appellant had shown no remorse, the convictions followed a four day trial which involved extensive cross-examination that the sentencing judge criticised as “vexatious” – whether the sentence was manifestly excessive in all of the circumstances Evidence Act 1977 (Qld), s 93A Horan v F [1995] 2 Qd R 490; [1994] QCA 375, cited Jones v The Queen (1997) 191 CLR 439; [1997] HCA 12, considered M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited R v Ashley [2005] QCA 93, cited R v BAT [2005] QCA 82, applied R v Crosby [2002] QCA 213, cited R v FI [2004] QCA 400, cited R v G; ex parte AG [2001] QCA 158, applied R v GO; ex parte A-G (Qld) [2004] QCA 453, cited R v HAQ [2008] QCA 234, cited R v Naidu [2008] QCA 130, cited R v O [2001] QCA 40, cited R v P [2000] 2 Qd R 401 [1999] QCA 411, considered R v R [2001] QCA 142, considered R v UA [2007] QCA 41, applied Suresh v The Queen (1998) 72 ALJR 769; [1998] HCA 23, cited
COUNSEL:	C Chowdhury for the applicant/appellant M B Lehane for the respondent
SOLICITORS:	Legal Aid Queensland for the…