R v Royal - [2010] QCA 129

SUPREME COURT OF QUEENSLAND

CITATION:

R v Royal [2010] QCA 129

PARTIES:

R
v
ROYAL, Nathan Joshua
(appellant)

FILE NO/S:

CA No 316 of 2009
DC No 310 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

28 May 2010

DELIVERED AT:

Townsville

HEARING DATE:

24 May 2010

JUDGES:

McMurdo P, Muir JA and Cullinane J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The appeal be dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – appellant convicted by majority verdict of one count of burglary by breaking in the night with violence (count 1) and two counts of rape (counts 2 and 3) – appellant argued that there was cogent evidence that his entry to the complainant’s dwelling was by consent – whether verdicts unreasonable and unsafe

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – jury was divided 10/2 on count 1 and 11/1 on counts 2 and 3 – primary judge directed jury on the possibility of majority verdicts – jury returned with a verdict of 11/1 on all counts – whether reasonably possible that a jury member either compromised his or her verdict or was overborne – whether verdicts unreasonable and unsafe

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – whether primary judge erred in not giving a Markuleski direction – whether verdicts unreasonable and unsafe

R v Ford [2006] QCA 142, cited
R v LR [2006] 1 Qd R 435; [2005] QCA 368, cited
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, cited
R v WAC[2008] QCA 151, cited

COUNSEL:

F Richards for the appellant
M B Lehane for the respondent

SOLICITORS:

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

McMURDO P:This appeal against conviction should be dismissed for the reasons given by Muir JA.

MUIR JA: Introduction

After a trial in the District Court in Cairns, the appellant was convicted by majority verdict of one count of burglary by breaking in the night with violence (count 1) and of two counts of rape (count 2, digital penetration of the vagina and count 3, digital penetration of the anus). He appeals against his convictions on grounds that the verdicts were unreasonable and unsafe as:

(1) In respect of count 1, there was cogent evidence supporting the appellant's version that his entry to the complainant's dwelling was by consent;

(2) The verdict on count 1 was returned in circumstances where it was reasonably possible that a jury member either compromised his or her verdict or was overborne;

(3) The primary judge erred in not giving a direction along the lines of that described in

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 Royal

Details

AGLC: R v Royal [2010] QCA 129
Case: [2010] QCA 129
Decision Date: 28 May 2010

CaseChat Overview and Summary

In the case of R v Royal, the appellant contested his convictions for one count of burglary by breaking in the night with violence, and two counts of rape, following a majority jury verdict. The jury was initially split with a 10/2 decision on the burglary count, and 11/1 on the rape counts. The primary judge had directed the jury on the possibility of majority verdicts. Ultimately, the jury reached a 11/1 verdict on all counts. The appellant argued that there was cogent evidence to suggest that his entry to the complainant’s dwelling was by consent, and thus the verdicts were unreasonable and unsafe. Additionally, the appellant contended that the primary judge erred in not giving a Markuleski direction, which he argued rendered the verdicts unreasonable and unsafe.

The primary legal issues for the court to decide were whether the verdicts were unreasonable and unsafe, particularly in light of the appellant’s contention that there was evidence suggesting that his entry to the complainant’s dwelling was by consent. Another legal issue was whether the jury was reasonably possibly compromised or overborne, given the initial split in the jury’s decision. The court also considered whether the primary judge’s failure to give a Markuleski direction amounted to a misdirection or non-direction that rendered the verdicts unreasonable and unsafe.

In dismissing the appeal, the court found that the evidence did not compel the conclusion that the appellant’s entry to the complainant’s dwelling was consensual. The court held that the jury's decision was not unreasonable or unsafe, considering the evidence presented. Furthermore, the court found that there was no reasonable possibility that a jury member either compromised their verdict or was overborne. Regarding the potential misdirection or non-direction by the primary judge, the court found that there was no error in the judge’s directions to the jury, and thus the verdicts remained valid and safe.

The appeal was dismissed, and the convictions for burglary by breaking in the night with violence and the two counts of rape were upheld.

Orders

Orders of the court

The appeal be 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 Royal [2010] QCA 129
PARTIES:	R v ROYAL, Nathan Joshua (appellant)
FILE NO/S:	CA No 316 of 2009 DC No 310 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	28 May 2010
DELIVERED AT:	Townsville
HEARING DATE:	24 May 2010
JUDGES:	McMurdo P, Muir JA and Cullinane J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The appeal be dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – appellant convicted by majority verdict of one count of burglary by breaking in the night with violence (count 1) and two counts of rape (counts 2 and 3) – appellant argued that there was cogent evidence that his entry to the complainant’s dwelling was by consent – whether verdicts unreasonable and unsafe CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – jury was divided 10/2 on count 1 and 11/1 on counts 2 and 3 – primary judge directed jury on the possibility of majority verdicts – jury returned with a verdict of 11/1 on all counts – whether reasonably possible that a jury member either compromised his or her verdict or was overborne – whether verdicts unreasonable and unsafe CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – whether primary judge erred in not giving a Markuleski direction – whether verdicts unreasonable and unsafe R v Ford [2006] QCA 142, cited R v LR [2006] 1 Qd R 435; [2005] QCA 368, cited R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, cited R v WAC[2008] QCA 151, cited
COUNSEL:	F Richards for the appellant M B Lehane for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent