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R v Robinson

R v Robinson

Case [2007] QCA 99 30 March 2007

Appeal

Sentencing

Misdirection and Non-Direction

Jury Directions

Voice Identification

Transcript of Audio Recordings

Criminal Law

Type to search within this case.

SUPREME COURT OF QUEENSLAND

CITATION:

R v Robinson [2007] QCA 99

PARTIES:

R
v
ROBINSON, Allan Norman
(appellant/applicant)

FILE NO/S:

CA No 301 of 2006
DC No 444 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

30 March 2007

DELIVERED AT:

Brisbane

HEARING DATE:

9 March 2007

JUDGES:

Williams and Keane JJA and Muir 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. Leave to appeal against sentence granted, and appeal allowed
3. The sentences of life imprisonment be set aside and, instead, the appellant be sentenced to 18 years imprisonment in respect of each offence to be served concurrently

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - OTHER MATTERS - where appellant convicted of two counts of rape and one count of maintaining a sexual relationship with a child under 16 - where audio recordings admitted into evidence - whether sufficient warning given in relation to voice identification - whether jury should have been provided with a transcript of the audio recordings - whether appropriate directions given to jury as to the use which they could make of the appellant's evidence

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 GRANTED - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - where appellant sentenced to life imprisonment - where learned sentencing judge concluded appellant was likely to commit further offences - whether sentence manifestly excessive

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld)
Penalties and Sentences Act 1992 (Qld), s 9(6)

Bulejcik v The Queen (1995) 185 CLR 375, applied
Domican v The Queen (1992) 173 CLR 555, applied
R v H [2001] QCA 167, CA No 40 of 2001, 1 May 2001, considered
R v Knijff (1993) 69 A Crim R 236, considered
R v Luke [1987] CA 9; CA No 342 of 1986, 4 March 1987, applied
R v Mercer (1993) 67 A Crim R 91, distinguished
R v Zheng (1995) 83 A Crim R 572, distinguished

COUNSEL:

P E Smith for the appellant
D R MacKenzie for the respondent

SOLICITORS:

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

WILLIAMS JA: I agree with all that is said by Keane JA in his reasons, and with the orders he has proposed.

KEANE JA: On 9 October 2006, the appellant was convicted after a trial by jury in the District Court at Cairns of one count of maintaining a sexual relationship with a child under 16 years of age and two counts of rape. The appellant was sentenced to life imprisonment in respect of each offence.

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 Robinson

Details

AGLC: R v Robinson [2007] QCA 99
Case: [2007] QCA 99
Decision Date: 30 March 2007

CaseChat Overview and Summary

The appeal in this matter concerns the conviction and sentencing of the appellant, Robinson, who was found guilty of two counts of rape and one count of maintaining a sexual relationship with a child under 16. The appellant brought the appeal before the court, challenging both the conviction and the severity of the sentence. The crux of the appeal is the contention that the trial judge did not sufficiently warn the jury about the reliability of voice identification from audio recordings, nor did the judge consider whether a transcript of the recordings should have been provided to the jury. Additionally, the appellant argued that the jury was not properly directed on how they could use the appellant's evidence. The appeal also contests the sentence of life imprisonment, claiming it is manifestly excessive given the circumstances of the case.

The court was tasked with determining whether the trial judge's failure to provide adequate warnings and directions about the use of audio evidence constituted a miscarriage of justice. Furthermore, the court had to consider if the sentence of life imprisonment was appropriate, taking into account the appellant's likelihood of reoffending. The court meticulously reviewed the legal precedents and statutory provisions relevant to these issues, including the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) and the Penalties and Sentences Act 1992 (Qld). The court also examined prior cases such as Bulejcik v The Queen, Domican v The Queen, and R v Knijff, among others, to contextualise the current appeal within the established legal framework.

The court found that while there were some deficiencies in the trial judge's directions to the jury regarding the audio evidence, these did not amount to a miscarriage of justice that would warrant a new trial. However, the court determined that the sentence of life imprisonment was manifestly excessive, especially when considering the appellant's age and the possibility of rehabilitation. By applying the principles from Bulejcik v The Queen and Domican v The Queen, the court concluded that the severity of the sentence was disproportionate to the crimes committed. The court granted the appellant leave to appeal against the sentence and allowed the appeal, setting aside the life sentence in favour of 18 years imprisonment for each offence, to be served concurrently.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Leave to appeal against sentence granted, and appeal allowed

3. The sentences of life imprisonment be set aside and, instead, the appellant be sentenced to 18 years imprisonment in respect of each offence to be served concurrently

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 Robinson [2007] QCA 99

Most Recent Citation

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited (No 2) [2010] FCA 652

Cases citing this decision · 25 of 25 shown

R v Griffith
[2024] QDC 207 Para 33

…cases: (a) R v SEA ;[26] (b) R v Mizner ;[27] (c) R v Robinson ;[28] (d) R v D ;[29] (e) R v Weldon .[30] [26][2023] QCA 56. [27][2019] QCA 198. [28][2007] QCA 99. [29][2003] QCA 547. [30][2006] QCA 504.…
R v NF
[2023] QCA 208 Para 4

…festly excessive. They were in line with sentences imposed in the past for similar levels of offending: R v SAG (2004) 147 A Crim R 301; R v Robinson [2007] QCA 99; R v TS [2009] 2 Qd R 276; R v HBT (2018) 274 A Crim R 569.…
R v CCT
[2021] QCA 278 Para 2

…es of life imprisonment were set aside. Instead he was sentenced to 18 years imprisonment in respect of each offence to be served concurrently. [39][2007] QCA 99. [40]At [31]–[32].…
R v CCR
[2021] QCA 119 Para 13

…on the applicant is not unjust, namely R v Robinson ,[5] R v H ,[6] R v TS ,[7] R v Young; Ex parte Attorney-General (Qld) [8] and R v KAI .[9] [5][2007] QCA 99. [6][2001] QCA 167. [7][2008] QCA 370; (2008) 191 A Crim R 220. [8][2002] QCA 474; (2002) 135 A Crim R 253. [9][2002] QCA 378. Consideration…
R v Crothers (a pseudonym)
[2020] QCA 268 Para 16

…s of guilty. [1]Applicant’s Outline, paragraph [18]. [2][2001] QCA 188. [3][2001] QCA 167. [4](2004) 147 A Crim R 301; [2004] QCA 286. [5][2007] QCA 99. [6][1999] QCA 430. [7][2011] QCA 192. [8][2011] QCA 69.…
R v Mizner
[2019] QCA 198 Para 18

…aults secret. The cases of substantial physical injury are ones where, by and large, the assault was opportunistic and not repeated over time. [112][2007] QCA 99. [113][1999] QCA 69. [114][2004] QCA 394. [115][2012] QCA 366. [116] Robinson , five to seven years; Daphney , four years; Shenfield , 13 years. [117]…
R v HBT
[2018] QCA 227 Para 24

…because of the applicant’s prior offending and lack of remorse, 14 or 15 years would be appropriate.[77] [75][2009] 2 Qd R 276; [2008] QCA 370. [76][2007] QCA 99. [77]AB 26 ll 1-4.…
R v Duckworth
[2016] QCA 30 Para 5

…on or recollection of certain events is a matter that goes to his credit and nothing else.”[34] [30][1999] QCA 216. [31]In R v Robinson [2007] QCA 99, Keane JA (with whom Williams JA and Muir J agreed) described Zheng as well as R v Mercer (1993) 67 A Crim R 91 as cases “concerned with the inappropriate use of a…
R v DBF (No 3)
[2013] QCA 382 Para 1

…gainst the applicant’s own daughters, the appropriate sentence was between 16 and 20 years imprisonment. [9][2001] QCA 167. [10][2002] QCA 381. [11][2007] QCA 99. [12][2009] QCA 174. [13][2011] QCA 192.…
R v CBJ
[2013] QCA 258

…sidered R v MBJ [2010] QCA 211 , distinguished R v NK (2008) 191 A Crim R 483; [2008] QCA 403 , considered R v Robinson [2007] QCA 99 , distinguished R v Ruhland [1999] QCA 430 , considered R v S [1993] QCA 367 , considered cited cited COUNSEL: J M McInnes for the applicant D A Holliday for the respondent SOLICI…
R v Mahony & Shenfield
[2012] QCA 366 Para 1

…instance of rape offences in Queensland is demonstrated by several cases which were referred to in this appeal. [10] QCC s 349(1). [11] R v Robinson [2007] QCA 99 per Keane JA at [38].…
R v Perini; ex parte (No 2)
[2011] QCA 384 Para 1

…he consequence that they posed such a direct risk of serious violence that life imprisonment was required to protect the community. [60] R v Robinson [2007] QCA 99, Keane JA, [38] (Williams JA and Muir J (as his Honour then was) agreeing).…
R v Ray
[2011] QCA 365

…1; [2007] QCA 198, considered R v O’Brien [2008] QCA 163, considered R v Price [2004] QCA 10, considered R v Robinson [2007] QCA 99, considered Veen v The Queen [No. 2] (1988) 164 CLR 465; [1988] HCA 14, cited COUNSEL: A J Glynn SC for the applicant D A Holliday for the respondent SOLICITORS: Legal Aid Queenslan…
R v BBY
[2011] QCA 69 Para 1

…ining an unlawful sexual relationship in respect of a child aged five to seven years old and two rapes. That sentence was imposed after a trial. [1][2007] QCA 99.…
R v Robinson
[2010] QCA 377 Para 1

…e in respect of that sentence was 23 December 2023. His parole eligibility date after serving 80 per cent of it was 19 May 2020. [13]See R v Robinson [2007] QCA 99.…
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited (No 2)
[2010] FCA 652 Para 29

…times in Queensland by the present Chief Justice of this Court, Keane JA (as his Honour then was) when sitting in the Court of Appeal in R v Robinson [2007] QCA 99 at [38], with the agreement of Williams JA and Muir J.…
R v Keenan
[2009] QCA 236 Para 2

…ich are reflected in the sentence could be met by a lesser sentence so as to avoid the 'banalisation' of a sentence of life imprisonment."[21] [20] [2007] QCA 99. [21] [2007] QCA 99 at [38].…
Vickers v. Timothy
[2009] QDC 255

…9.80. A recent Court of Appeal matter which may be seen as pertinent to these questions, although it involved a maximum sentence of life, is Robinson [2007] QCA 99, especially at paragraph 38.…
R v CAP
[2009] QCA 174 Para 1

…in his car. The offender was at first instance, sentenced to life imprisonment but on appeal, this sentence was reduced to 18 years imprisonment. [6][2007] QCA 99.…
R v NK
[2008] QCA 403 Para 1

…District Court and from decisions of this Court, namely R v D [2003] QCA 88, R v Dickeson; ex-parte A-G; R v Dickeson [2004] QCA 78 and R v Robinson [2007] QCA 99.…
R v TS
[2008] QCA 370 Para 1

…I agree with his Honour’s reasons and proposed orders, but because of the significance attributed in the respondent’s submissions to R v Robinson [2007] QCA 99 and because that decision is frequently cited in applications of this kind I propose also to give my own reasons for concluding that the sentence imposed…
R v RAC
[2008] QCA 185 Para 1

…rs of mitigation, especially the ex officio plea of guilty, it's submitted that a sentence between the 12 to 14 year mark would be appropriate". [1][2007] QCA 99. [2][2003] QCA 88. [3]Unreported, Court of Criminal Appeal, Qld, CA No 342 of 1986, 4 March 1987. [4][1999] QCA 311.…
R v HAP
[2008] QCA 137

…fts [1999] 1 Qd R 386, applied R v Dolan [2008] QCA 41, applied R v PAD [2006] QCA 398, considered R v Robinson [2007] QCA 99, considered COUNSEL: J D Henry SC, with J C Trevino, for the applicant/appellant V P Keegan for the respondent SOLICITORS: Legal Aid Queensland for the applicant/appellant Director of Pub…
Donaldson v The State of Western Australia
[2007] WASCA 216

…AC 41 R v Berrada (1989) 91 Cr App Rep 131 R v Davies (1985) 3 NSWLR 276 R v Falealili [1996] 3 NZLR 664 R v Ravindra [1997] 3 NZLR 242 R v Robinson [2007] QCA 99 R v Rowton (1865) Le & Ca 520; 169 ER 1497 R v Schmahl [1965] VR 745 R v Soloman [2006] QCA 244 R v Trimboli (1979) 21 SASR 577 R v Vye [1993] 1 WLR…
High Court Bulletin
[2007] HCAB 8

…e Queen [2007] QCA 68 (B17/2007) Special leave dismissed. Fischer v The Queen [2007] QCA 105 (B22/2007) Special leave dismissed. Robinson v The Queen [2007] QCA 99 (B23/2007) Special leave dismissed.…

View all 25 citing cases →

Cases cited in this decision · 21 of 21 shown

Smith v The Queen
[2017] HCA 19 Para 1

…tness in no better position than the jury to make the necessary comparison. [1] R v Griffith (1995) 79 A Crim R 125 at 127 – 128; Smith v The Queen (2001) 206 CLR 650 at 655 [10] – [11]; R v Marsh [2005] NSWCCA 331 at [16] – [34].…
R v PAD
[2006] QCA 398 Para 1

…DAF ,[11] R v HAA [12] and R v PAD .[13] [8](1993) 69 A Crim R 236. [9][2001] QCA 167. [10][2002] QCA 381. [11][2004] QCA 368. [12][2006] QCA 55. [13][2006] QCA 398.…
Buckley v The Queen
[2006] HCA 7 Para 1

…he "banalisation" of a sentence of life imprisonment.[7] [6] R v Manson [1974] Qd R 191 at 201; R v Ruhland [1999] QCA 430. [7]Cf Buckley v The Queen (2006) 80 ALJR 605 at 613 [42].…
R v HAA
[2006] QCA 55 Para 1

…to R v G ,[10] R v DAF ,[11] R v HAA [12] and R v PAD .[13] [8](1993) 69 A Crim R 236. [9][2001] QCA 167. [10][2002] QCA 381. [11][2004] QCA 368. [12][2006] QCA 55. [13][2006] QCA 398.…
R v Marsh
[2005] NSWCCA 331 Para 1

…he necessary comparison. [1] R v Griffith (1995) 79 A Crim R 125 at 127 – 128; Smith v The Queen (2001) 206 CLR 650 at 655 [10] – [11]; R v Marsh [2005] NSWCCA 331 at [16] – [34].…
R v DAF
[2004] QCA 368 Para 1

…ce may also be made to R v G ,[10] R v DAF ,[11] R v HAA [12] and R v PAD .[13] [8](1993) 69 A Crim R 236. [9][2001] QCA 167. [10][2002] QCA 381. [11][2004] QCA 368. [12][2006] QCA 55. [13][2006] QCA 398.…
Attorney-General v Fardon
[2003] QCA 416 Para 1

…on the basis of speculation as to the "outer limits" of an offender's dangerous potential for further sexual offending.[5] [5]Cf A-G (Qld) v Fardon [2003] QCA 416 at [103]. See also R v Moffatt [1988] 2 VR 229 at 260.…
R v G
[2002] QCA 381 Para 1

…d on appeal. Reference may also be made to R v G ,[10] R v DAF ,[11] R v HAA [12] and R v PAD .[13] [8](1993) 69 A Crim R 236. [9][2001] QCA 167. [10][2002] QCA 381. [11][2004] QCA 368. [12][2006] QCA 55. [13][2006] QCA 398.…
Smith v The Queen
[2001] HCA 50 Para 1

…s is given by a witness in no better position than the jury to make the necessary comparison. [1] R v Griffith (1995) 79 A Crim R 125 at 127 – 128; Smith v The Queen (2001) 206 CLR 650 at 655 [10] – [11]; R v Marsh [2005] NSWCCA 331 at [16] – [34].…
R v H
[2001] QCA 167 Para 1

…t sentence was upheld on appeal. Reference may also be made to R v G ,[10] R v DAF ,[11] R v HAA [12] and R v PAD .[13] [8](1993) 69 A Crim R 236. [9][2001] QCA 167. [10][2002] QCA 381. [11][2004] QCA 368. [12][2006] QCA 55. [13][2006] QCA 398.…
Nicholas v The Queen
[1998] HCA 9 Para 1

…of an offender's dangerous potential for further sexual offending.[5] [5]Cf A-G (Qld) v Fardon [2003] QCA 416 at [103]. See also R v Moffatt [1988] 2 VR 229 at 260.…
Bulejcik v The Queen
[1995] HCA 54

…ntence manifestly excessive Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) Penalties and Sentences Act 1992 (Qld), s 9(6) Bulejcik v The Queen (1995) 185 CLR 375, applied Domican v The Queen (1992) 173 CLR 555, applied R v H [2001] QCA 167, CA No 40 of 2001, 1 May 2001, considered R v Knijff (1993) 69 A Crim R…
Domican v The Queen
[1991] HCATrans 357

…"This Court would be slow to depart from a trial judge's assessment that material was of sufficient quality and quantity for the jury to be permitted to make the necessary comparison. The question rather is whether the jury were given sufficient warning of the difficulties involved. While they were …
Kelleher v The Queen
[1974] HCA 48

…of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed ( Kelleher v The Queen (1974) 131 CLR 534 at 551; R v Turnbull [1977] QB 224 at 228; R v Burchielli [1981] VR 611 at 616-619; R v Bartels (1986) 44 SASR 260 at 270-271). The terms of the warn…
Smith v The Queen
[1990] HCATrans 172

…t be instructed 'as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case' ( Smith v The Queen (1990) 64 ALJR 588 at 588). A warning in general terms is insufficient ( Kelleher v The Queen (1974) 131 CLR 534 at 551). The attention of the jury 'should…
Davies v R
[1937] HCA 27

…arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge's office behind it ( Davies v The King (1937) 57 CLR 170 at 182-183). It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably…
Domican v R
[1992] HCA 13

…(Sexual Offenders) Act 2003 (Qld) Penalties and Sentences Act 1992 (Qld), s 9(6) Bulejcik v The Queen (1995) 185 CLR 375, applied Domican v The Queen (1992) 173 CLR 555, applied R v H [2001] QCA 167, CA No 40 of 2001, 1 May 2001, considered R v Knijff (1993) 69 A Crim R 236, considered R v Luke [1987] CA 9; CA No 342…
R v Ruhland
[1999] QCA 430 Para 1

…met by a lesser sentence so as to avoid the "banalisation" of a sentence of life imprisonment.[7] [6] R v Manson [1974] Qd R 191 at 201; R v Ruhland [1999] QCA 430. [7]Cf Buckley v The Queen (2006) 80 ALJR 605 at 613 [42].…
[1977] QB 224
[1977] QB 224

…ury as to the dangers of convicting on such evidence where its reliability is disputed ( Kelleher v The Queen (1974) 131 CLR 534 at 551; R v Turnbull [1977] QB 224 at 228; R v Burchielli [1981] VR 611 at 616-619; R v Bartels (1986) 44 SASR 260 at 270-271). The terms of the warning need not follow any particular…
[1990] 1 AC 363
[1990] 1 AC 363

…384; R v Finn (1988) 34 A Crim R 425 at 435-436). But it must be cogent and effective ( R v Dickson [1983] 1 VR 227 at 230; Reid (Junior) v The Queen [1990] 1 AC 363 at 380). It must be appropriate to the circumstances of the case ( R v Aziz [1982] 2 NSWLR 322 at 328; R v Allen (1984) 16 A Crim R 441 at 444-445).…
[1979] AC 374
[1979] AC 374

…[1983] 1 VR 227 at 230; Reid (Junior) v The Queen [1990] 1 AC 363 at 380). It must be appropriate to the circumstances of the case ( R v Aziz [1982] 2 NSWLR 322 at 328; R v Allen (1984) 16 A Crim R 441 at 444-445). Consequently, the jury must be instructed 'as to the factors which may affect the consideration…

Legislation cited in this decision · 2

Penalties and Sentences Act 1992 (Qld)
9(6) 2 mentions (from Para 1)
Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld)
1 mention (from Para 1)

CITATION:	R v Robinson [2007] QCA 99
PARTIES:	R v ROBINSON, Allan Norman (appellant/applicant)
FILE NO/S:	CA No 301 of 2006 DC No 444 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	30 March 2007
DELIVERED AT:	Brisbane
HEARING DATE:	9 March 2007
JUDGES:	Williams and Keane JJA and Muir 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. Leave to appeal against sentence granted, and appeal allowed 3. The sentences of life imprisonment be set aside and, instead, the appellant be sentenced to 18 years imprisonment in respect of each offence to be served concurrently
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - OTHER MATTERS - where appellant convicted of two counts of rape and one count of maintaining a sexual relationship with a child under 16 - where audio recordings admitted into evidence - whether sufficient warning given in relation to voice identification - whether jury should have been provided with a transcript of the audio recordings - whether appropriate directions given to jury as to the use which they could make of the appellant's evidence 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 GRANTED - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - where appellant sentenced to life imprisonment - where learned sentencing judge concluded appellant was likely to commit further offences - whether sentence manifestly excessive Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) Penalties and Sentences Act 1992 (Qld), s 9(6) Bulejcik v The Queen (1995) 185 CLR 375, applied Domican v The Queen (1992) 173 CLR 555, applied R v H [2001] QCA 167, CA No 40 of 2001, 1 May 2001, considered R v Knijff (1993) 69 A Crim R 236, considered R v Luke [1987] CA 9; CA No 342 of 1986, 4 March 1987, applied R v Mercer (1993) 67 A Crim R 91, distinguished R v Zheng (1995) 83 A Crim R 572, distinguished
COUNSEL:	P E Smith for the appellant D R MacKenzie for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent