R v. Ross - [2007] QCA 244

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ross [2007] QCA 244

PARTIES:

R
v
ROSS, Shane Graham
(appellant)

FILE NO/S:

CA No 52 of 2007
DC No 322 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED ON:

27 July 2007

DELIVERED AT:

Brisbane

HEARING DATE:

19 July 2007

JUDGES:

Williams and Keane JJA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – OTHER MATTERS – where appellant convicted of rape – where consent was the only issue at trial – where complainant gave evidence that she was asleep when intercourse occurred – whether learned trial judge gave adequate directions in relation to consent – whether learned trial judge erred in failing to direct on s 24 of the Criminal Code 1899 (Qld) – whether learned trial judge erred in directing as to preliminary complaint

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – whether verdict of jury was unreasonable

Criminal Code 1899 (Qld), s 24

R v SAX [2006] QCA 397; CA No 167 of 2006, 29 September 2006, distinguished

R v Soloman [2006] QCA 244; CA No 1 of 2006, 23 June 2006, distinguished
R v Wickson [2007] QCA 104; CA No 314 of 2006, 30 March 2007, applied

COUNSEL:

P E Smith for the appellant
R G Martin SC for the respondent

SOLICITORS:

Affleck Lawton Lawyers for the appellant
Director of Public Prosecution (Queensland) for the respondent

WILLIAMS JA: I agree with the reasons of Keane JA and with the order proposed.

KEANE JA: On 15 February 2007, the appellant was convicted upon the verdict of a jury of one count of rape. He was sentenced to four years imprisonment with a parole eligibility date of 14 February 2009. At the commencement of the hearing of the appeal, Mr P E Smith of Counsel on behalf of the appellant sought and was granted leave to amend the notice of appeal. Pursuant to that grant of leave, the grounds of appeal are:

(a) that the learned trial judge:
·"failed to adequately sum up"
·"erred in failing to direct on s 24 of the Code"
·"erred in directing as to preliminary complaint"

(b) that the "verdict of the jury was unreasonable"

I will discuss these grounds of appeal after first summarising the Crown case at trial and the case presented on behalf of the appellant.

The Crown case at trial

The appellant was charged with the rape of the complainant on or about 8 August 2004. At that time, he was almost 22 years of age.

The complainant was 19 years of age at the time of the alleged…

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. Ross

Details

AGLC: R v Ross [2007] QCA 244
Case: [2007] QCA 244
Decision Date: 27 July 2007

CaseChat Overview and Summary

The appellant was convicted of rape and appealed on several grounds, including misdirection by the trial judge regarding consent and the omission to direct on s 24 of the Criminal Code 1899 (Qld). The complainant testified that she was asleep at the time of the alleged offence, making consent the central issue. The appeal contested whether the trial judge adequately addressed the concept of consent and failed to properly direct the jury on s 24 of the Criminal Code, which pertains to the presumption of consent in cases involving unconsciousness. The appellant also argued that the trial judge erroneously directed the jury regarding a preliminary complaint made by the complainant. The court was required to determine if these alleged errors warranted a new trial.

The court considered the appellant's arguments, assessing whether the trial judge's directions were sufficient and if any errors were significant enough to influence the jury's verdict. It examined the trial judge's explanation of consent and whether it adequately covered the legal principles required for the jury's consideration. The court also reviewed the omission of direction on s 24 of the Criminal Code, assessing whether this impacted the jury's understanding of the case. Furthermore, the court evaluated the trial judge's direction on the preliminary complaint to determine if it was prejudicial. The court ultimately concluded that the alleged misdirections and omissions did not undermine the jury's verdict.

The court found that the trial judge's directions, though not perfect, were sufficient to guide the jury on the issue of consent. The court held that any omissions or errors were not substantial enough to affect the outcome of the trial. Additionally, the court found that the verdict reached by the jury was reasonable and supported by the evidence presented. Consequently, the appeal was dismissed, and the conviction was upheld. The final orders of the court were to dismiss the appeal and maintain the conviction as determined by the jury.

Orders

Orders of the court

Appeal dismissed

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 Ross [2007] QCA 244
PARTIES:	R v ROSS, Shane Graham (appellant)
FILE NO/S:	CA No 52 of 2007 DC No 322 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Beenleigh
DELIVERED ON:	27 July 2007
DELIVERED AT:	Brisbane
HEARING DATE:	19 July 2007
JUDGES:	Williams and Keane JJA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – OTHER MATTERS – where appellant convicted of rape – where consent was the only issue at trial – where complainant gave evidence that she was asleep when intercourse occurred – whether learned trial judge gave adequate directions in relation to consent – whether learned trial judge erred in failing to direct on s 24 of the Criminal Code 1899 (Qld) – whether learned trial judge erred in directing as to preliminary complaint CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – whether verdict of jury was unreasonable Criminal Code 1899 (Qld), s 24 R v SAX [2006] QCA 397; CA No 167 of 2006, 29 September 2006, distinguished R v Soloman [2006] QCA 244; CA No 1 of 2006, 23 June 2006, distinguished R v Wickson [2007] QCA 104; CA No 314 of 2006, 30 March 2007, applied
COUNSEL:	P E Smith for the appellant R G Martin SC for the respondent
SOLICITORS:	Affleck Lawton Lawyers for the appellant Director of Public Prosecution (Queensland) for the respondent