R v Rope - [2010] QCA 194

SUPREME COURT OF QUEENSLAND

CITATION:

R v Rope [2010] QCA 194

PARTIES:

R
v
ROPE, Robin Paul
(appellant)

FILE NO/S:

CA No 301 of 2009
DC No 723 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

30 July 2010

DELIVERED AT:

Brisbane

HEARING DATE:

16 July 2010

JUDGES:

Chief Justice and Fraser and Chesterman JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. The appeal against conviction is allowed.
2. The convictions are set aside.
3. A retrial is ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF TRIAL JUDGE – where appellant tried on three counts of rape – where jury requested a copy of complainant’s testimony during their deliberations – where judge declined to give a copy of the transcript and did not offer to read out any part of it – where appellant was convicted – whether trial judge erred in failing to provide the transcript and failing to inform jury of their ability to request him to read out part of the transcript

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where jury had to determine whether the intercourse was consensual and whether appellant honestly and reasonably but mistakenly believed it was consensual – where trial judge did not explain s 24 of the Criminal Code to the jury by relating it to the facts of the case – where trial judge explained the law by reference to what a reasonable person in the circumstances would have believed – where defence counsel did not seek a re-direction – whether the misdirection was sufficient to set aside convictions and order a retrial – whether the proviso in s 668E(1A) should be applied – whether trial judge’s direction was inadequate for failing to relate the concept of honest and reasonable mistake of fact to the relevant evidence

Criminal Code 1899 (Qld), s 24, s 668E(1A)

Gately v The Queen (2007) 232 CLR 208; [2007] HCA 55, cited
R v Cutts [2005] QCA 306, cited
R v Dunrobin [2008] QCA 116, followed
R v IA Shaw [1996] 1 Qd R 641; [1995] QCA 45, cited
R v Wilson [2009] 1 Qd R 476; [2008] QCA 349, applied
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, 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

CHIEF JUSTICE: I have had the advantage of reading the reasons for judgment of Chesterman JA. I agree with the orders proposed by His Honour and with his reasons.

FRASER JA: I have had the advantage of reading the reasons for judgment of Chesterman JA. I agree with those…

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 Rope

Details

AGLC: R v Rope [2010] QCA 194
Case: [2010] QCA 194
Decision Date: 30 July 2010

CaseChat Overview and Summary

The appellant, Rope, was convicted in the trial court of three counts of rape and sought to appeal the decision. The jury in the trial had sought a copy of the complainant’s testimony during their deliberations, but the trial judge declined to provide it and did not offer to read out any part of it. The appellant also argued that the trial judge misdirected the jury on the effect of s 24 of the Criminal Code by failing to explain it in relation to the facts of the case. The trial judge instead explained the law by reference to what a reasonable person in the circumstances would have believed. The appellant argued that this misdirection was sufficient to set aside the convictions and order a retrial.

The court held that the trial judge’s refusal to provide the jury with a copy of the complainant’s testimony and his failure to inform them of their ability to request him to read out part of the transcript constituted a significant error. This error undermined the fairness of the trial and warranted the setting aside of the convictions. Additionally, the court found that the trial judge’s direction on s 24 of the Criminal Code was inadequate as it failed to relate the concept of honest and reasonable mistake of fact to the relevant evidence. This misdirection had a substantial and injurious effect on the trial and further warranted the setting aside of the convictions. The court held that the proviso in s 668E(1A) did not apply in this case as the misdirection was not trivial or formal.

The appeal against conviction was allowed, and the convictions were set aside. The court ordered a retrial to ensure that the appellant received a fair trial and that the jury was properly directed on the relevant law.

Orders

Orders of the court

1. The appeal against conviction is allowed.

2. The convictions are set aside.

3. A retrial is ordered.

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 Rope [2010] QCA 194
PARTIES:	R v ROPE, Robin Paul (appellant)
FILE NO/S:	CA No 301 of 2009 DC No 723 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	30 July 2010
DELIVERED AT:	Brisbane
HEARING DATE:	16 July 2010
JUDGES:	Chief Justice and Fraser and Chesterman JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The appeal against conviction is allowed. 2. The convictions are set aside. 3. A retrial is ordered.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF TRIAL JUDGE – where appellant tried on three counts of rape – where jury requested a copy of complainant’s testimony during their deliberations – where judge declined to give a copy of the transcript and did not offer to read out any part of it – where appellant was convicted – whether trial judge erred in failing to provide the transcript and failing to inform jury of their ability to request him to read out part of the transcript CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where jury had to determine whether the intercourse was consensual and whether appellant honestly and reasonably but mistakenly believed it was consensual – where trial judge did not explain s 24 of the Criminal Code to the jury by relating it to the facts of the case – where trial judge explained the law by reference to what a reasonable person in the circumstances would have believed – where defence counsel did not seek a re-direction – whether the misdirection was sufficient to set aside convictions and order a retrial – whether the proviso in s 668E(1A) should be applied – whether trial judge’s direction was inadequate for failing to relate the concept of honest and reasonable mistake of fact to the relevant evidence Criminal Code 1899 (Qld), s 24, s 668E(1A) Gately v The Queen (2007) 232 CLR 208; [2007] HCA 55, cited R v Cutts [2005] QCA 306, cited R v Dunrobin [2008] QCA 116, followed R v IA Shaw [1996] 1 Qd R 641; [1995] QCA 45, cited R v Wilson [2009] 1 Qd R 476; [2008] QCA 349, applied Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, 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