R v Robinson - [2007] QCA 349

SUPREME COURT OF QUEENSLAND

CITATION:

R v Robinson [2007] QCA 349

PARTIES:

R
v
ROBINSON, Richard Lawrence
(appellant/applicant)

FILE NO/S:

CA No 124 of 2007
DC No 2250 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

19 October 2007

DELIVERED AT:

Brisbane

HEARING DATE:

4 October 2007

JUDGES:

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

ORDER:

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence refused

CATCHWORDS:

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 – OTHER IRREGULARITIES – where appellant convicted of rape – where appellant's DNA established intercourse had occurred – where forensic testing of bedding revealed presence of unidentified semen – whether late disclosure of evidence by Crown caused miscarriage of justice – whether verdicts unsafe and unsatisfactory

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 – where appellant sentenced to 16 years imprisonment for each of three counts of rape –whether sentence manifestly excessive

Criminal Code Act 1899 (Qld), s 590AB

R v Coghlan [1998] 2 Qd R 498; [1997] QCA 270, cited

R v Edwards [2004] QCA 20; CA No 357 of 2003, 11 February 2004, cited

R v Mason [1997] QCA 067; CA No 360 of 1996, 19 March 1997, cited

COUNSEL:

D R Kent for the appellant/applicant
T A Fuller for the respondent

SOLICITORS:

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

KEANE JA: On 10 May 2007, the appellant was convicted upon the verdict of a jury of six counts of rape, one count of burglary, one count of deprivation of liberty and one count of stealing. On 28 May 2007, he was sentenced to concurrent terms of imprisonment as follows:

Counts 4, 6 and 7 (rape)            :         16 years imprisonment
Counts 2, 3 and 5 (rape)            :         10 years imprisonment
Count 1 (burglary)  :         10 years imprisonment
Count 8 (deprivation of liberty) :         two years imprisonment
Count 9 (stealing)  :         12 months imprisonment

The appellant seeks to appeal against his conviction and his 16 year sentence. The grounds of appeal against the convictions overlap somewhat. They are that the verdicts were unsafe and unsatisfactory, and that there was a miscarriage of justice because of the late disclosure by the Crown of forensic testing of bedding in an upstairs bedroom of the complainant's house. It was there that the final act of intercourse had occurred and where the appellant had ejaculated. The forensic testing revealed the presence of semen stains which were not referable to the appellant.

The appellant also seeks to…

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 Robinson

Details

AGLC: R v Robinson [2007] QCA 349
Case: [2007] QCA 349
Decision Date: 19 October 2007

CaseChat Overview and Summary

The appellant was convicted of three counts of rape and sentenced to 16 years imprisonment for each count. The appellant appealed against both his conviction and sentence. The primary ground of appeal was that the late disclosure of evidence by the prosecution caused a miscarriage of justice, making the verdicts unsafe and unsatisfactory. The appellant also argued that his sentence was manifestly excessive.

The legal issues before the court were whether the late disclosure of evidence by the prosecution amounted to a miscarriage of justice, and whether the sentence imposed was manifestly excessive. The court considered the nature and significance of the undisclosed evidence, and whether it had a real and substantial prospect of affecting the outcome of the trial. The court also examined the principles of sentencing in relation to the crime of rape, and whether the sentence imposed was outside the range of sentences that could be regarded as appropriate.

The court found that the late disclosure of evidence did not cause a miscarriage of justice as the evidence was not critical to the appellant's conviction. The court held that the presence of unidentified semen on the bedding was not sufficient to raise a reasonable doubt as to the appellant's guilt. The court also found that the sentence imposed was not manifestly excessive, taking into account the seriousness of the crimes and the need for general and specific deterrence. The appeal against conviction was dismissed, and the application for leave to appeal against sentence was refused.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence refused

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.

CITATION:	R v Robinson [2007] QCA 349
PARTIES:	R v ROBINSON, Richard Lawrence (appellant/applicant)
FILE NO/S:	CA No 124 of 2007 DC No 2250 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	19 October 2007
DELIVERED AT:	Brisbane
HEARING DATE:	4 October 2007
JUDGES:	Keane and Holmes JJA and Jones J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal against conviction dismissed 2. Application for leave to appeal against sentence refused
CATCHWORDS:	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 – OTHER IRREGULARITIES – where appellant convicted of rape – where appellant's DNA established intercourse had occurred – where forensic testing of bedding revealed presence of unidentified semen – whether late disclosure of evidence by Crown caused miscarriage of justice – whether verdicts unsafe and unsatisfactory 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 – where appellant sentenced to 16 years imprisonment for each of three counts of rape –whether sentence manifestly excessive Criminal Code Act 1899 (Qld), s 590AB R v Coghlan [1998] 2 Qd R 498; [1997] QCA 270, cited R v Edwards [2004] QCA 20; CA No 357 of 2003, 11 February 2004, cited R v Mason [1997] QCA 067; CA No 360 of 1996, 19 March 1997, cited
COUNSEL:	D R Kent for the appellant/applicant T A Fuller for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant/applicant Director of Public Prosecutions (Queensland) for the respondent