R v Raphael - [2009] QCA 145

SUPREME COURT OF QUEENSLAND

CITATION:

R v Raphael [2009] QCA 145

PARTIES:

R
v
RAPHAEL, William Marshall
(appellant/applicant)

FILE NO/S:

CA No 286 of 2008
DC No 72 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Gympie

DELIVERED ON:

29 May 2009

DELIVERED AT:

Brisbane

HEARING DATE:

12 May 2009

JUDGES:

Keane and Holmes JJA and A Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal dismissed

2. Application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PRESENTATION OF DEFENCE CASE – where appellant convicted of, inter alia, unlawful carnal knowledge of person with an impairment of the mind under s 216(1) of the Criminal Code 1899 (Qld) ("the Code") – where defences available under s 216(4) of the Code – where appellant did not rely upon defences at trial – where appellant argued Crown failed to meet burden of proof – whether learned trial judge's express directions with respect to consideration of defences and burden of proof sufficient warning to jury

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR UNSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where intellectually impaired complainant gave inconsistent reports of complaint – where reliability of complainant's evidence question for the jury – whether unreasonable for jury to accept complainant's evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where appellant suffers from Bi-Polar Disorder – where appellant argued sentencing judge failed to have regard to his intellectual and psychological difficulties – whether sentence manifestly excessive

Criminal Code 1899 (Qld), s 216
Evidence Act 1977 (Qld), s 9B, s 93A

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited
R v Danine (2004) 145 A Crim R 278; [2004] QCA 102, cited
R v Eaton [2005] QCA 191, cited
R v Ferguson; ex parte A-G (Qld) [2008] QCA 227, cited
R v L [1997] QCA 436, cited
R v Libke [2006] QCA 242, cited
R v Tichowitsch [2007] 2 Qd R 462; [2006] QCA 569, cited

COUNSEL:

K Prskalo for the appellant
M B Lehane for the respondent

SOLICITORS:

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

KEANE JA: On 16 October 2008 the appellant was convicted upon the verdict of a jury of one count of unlawfully procuring an intellectually impaired person to commit an indecent act (count 2 on the indictment), three counts of indecently dealing with an intellectually impaired person (counts 3, 5 and 8), one count of having unlawful carnal knowledge of an intellectually impaired person (count 6), and one count of procuring an intellectually impaired…

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 Raphael

Details

AGLC: R v Raphael [2009] QCA 145
Case: [2009] QCA 145
Decision Date: 29 May 2009

CaseChat Overview and Summary

The appeal before the Court was from a conviction of unlawful carnal knowledge of a person with an impairment of the mind, pursuant to section 216(1) of the Criminal Code 1899 (Qld). The appellant contested the conviction on various grounds, including that the learned trial judge did not adequately direct the jury on the defences available under section 216(4) of the Code, which the appellant did not rely upon at trial. The appellant further argued that the Crown failed to meet its burden of proof, and that the jury's verdict was unreasonable and unsupportable in light of the evidence presented.

In addressing the appellant's contentions, the Court found that the trial judge's directions to the jury with respect to the defences and the burden of proof were sufficient. The Court held that the trial judge had clearly outlined the defences and the Crown's burden of proof, and that the jury was left to determine the reliability of the complainant's evidence. The Court found that it was open to the jury to accept the complainant's evidence, despite the inconsistencies, and that the jury's verdict was not unreasonable or unsupportable.

The Court also considered the appellant's argument that the sentence imposed was manifestly excessive, given his intellectual and psychological difficulties. However, the Court found that the sentencing judge had appropriately taken into account the appellant's circumstances, and that the sentence was not manifestly excessive. The Court dismissed the appeal and refused the application for leave to appeal against sentence.

Orders

Orders of the court

1. Appeal dismissed

2. 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 Raphael [2009] QCA 145
PARTIES:	R v RAPHAEL, William Marshall (appellant/applicant)
FILE NO/S:	CA No 286 of 2008 DC No 72 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Gympie
DELIVERED ON:	29 May 2009
DELIVERED AT:	Brisbane
HEARING DATE:	12 May 2009
JUDGES:	Keane and Holmes JJA and A Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal dismissed 2. Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PRESENTATION OF DEFENCE CASE – where appellant convicted of, inter alia, unlawful carnal knowledge of person with an impairment of the mind under s 216(1) of the Criminal Code 1899 (Qld) ("the Code") – where defences available under s 216(4) of the Code – where appellant did not rely upon defences at trial – where appellant argued Crown failed to meet burden of proof – whether learned trial judge's express directions with respect to consideration of defences and burden of proof sufficient warning to jury CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR UNSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where intellectually impaired complainant gave inconsistent reports of complaint – where reliability of complainant's evidence question for the jury – whether unreasonable for jury to accept complainant's evidence CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where appellant suffers from Bi-Polar Disorder – where appellant argued sentencing judge failed to have regard to his intellectual and psychological difficulties – whether sentence manifestly excessive Criminal Code 1899 (Qld), s 216 Evidence Act 1977 (Qld), s 9B, s 93A M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited R v Danine (2004) 145 A Crim R 278; [2004] QCA 102, cited R v Eaton [2005] QCA 191, cited R v Ferguson; ex parte A-G (Qld) [2008] QCA 227, cited R v L [1997] QCA 436, cited R v Libke [2006] QCA 242, cited R v Tichowitsch [2007] 2 Qd R 462; [2006] QCA 569, cited
COUNSEL:	K Prskalo for the appellant M B Lehane for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent