R v RUJ

Case [2021] QCA 114

SUPREME COURT OF QUEENSLAND

CITATION:

R v RUJ [2021] QCA 114

PARTIES:

R
v
RUJ
(appellant/applicant)

FILE NO/S:

CA No 179 of 2020
DC No 472 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:


District Court at Beenleigh – [2020] QDC 198 (Muir DCJ)

DELIVERED ON:

28 May 2021

DELIVERED AT:

Brisbane

HEARING DATE:

26 February 2021

JUDGES:

Sofronoff P and McMurdo and Mullins JJA

ORDERS:

1.   Appeal against convictions dismissed.

2.   Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – TRIAL HAD BEFORE JUDGE WITHOUT JURY – GENERALLY – where the appellant was convicted of rape and attempted rape – where the appellant appeals against the verdict on the ground that there has been a miscarriage of justice – where the appellant submitted that the trial judge erred by applying irrelevant considerations or incorrect facts to the determination of the appellant’s credibility and reliability – whether there was a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was convicted of rape and attempted rape – where the appellant was sentenced to a head sentence of four years’ imprisonment –whether the sentence was manifestly excessive

Criminal Code (Qld), s 615C, s 668D, s 668E

Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29, considered
Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68, considered
R v Keevers; R v Filewood[2004] QCA 207, considered
R v O’Dempsey[2018] QCA 364, discussed
R v Sailovic-Jeremic[2011] QCA 211, considered
R v Smith[2020] QCA 23, considered

COUNSEL:

B J Power for the appellant/applicant
M J Hynes for the respondent

SOLICITORS:

Robertson O’Gorman Solicitors for the appellant/applicant
Director of Public Prosecutions (Queensland) for the respondent

  1. SOFRONOFF P:  I agree with the reasons of McMurdo JA and with the orders proposed by his Honour.

  2. McMURDO JA:  The appellant was convicted of the rape and attempted rape of a young woman, for which he was sentenced to concurrent terms of four years’ and two years’ imprisonment, suspended after 20 months.  He appeals against the convictions and seeks leave to appeal against the sentences.

  3. The appellant was tried in the District Court by Muir DCJ, sitting without a jury.  The essential evidence in the prosecution case was that given by the complainant.  She was a friend of the appellant’s daughter, and was one of several people who were then sleeping in the appellant’s house after a birthday celebration.  In the early hours of the morning, she awoke to find that a man had entered the room in which she was sleeping (alone) and that man proceeded to digitally rape her and attempted to insert his penis into her vagina.  The complainant said that this man was the appellant.

  4. The appellant gave evidence.  He denied being in the complainant’s room.  The trial judge…

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Details
AGLC
R v RUJ [2021] QCA 114
Case
[2021] QCA 114
Decision Date

CaseChat Overview and Summary

The appellant was convicted of rape and attempted rape and appeals against the verdict on the ground of a miscarriage of justice, arguing that the trial judge erred by applying irrelevant considerations or incorrect facts to the determination of the appellant’s credibility and reliability. The appellant also argues that the sentence imposed was manifestly excessive. The court had to decide whether the trial judge erred in assessing the appellant’s credibility and whether the sentence imposed was manifestly excessive.

The court held that the appeal and the application for leave to appeal should fail. The trial judge was not required to accept the appellant’s version of events. The trial judge had evaluated the evidence of the complainant and the appellant and had found the former to be more credible. The trial judge had also found that the appellant was not a credible witness, and that his evidence was unreliable. The court found no error in the trial judge’s assessment of the appellant’s credibility. The court also found that the sentence imposed was not manifestly excessive, given the gravity of the offences and the appellant’s criminal history.

The appeal against the convictions was dismissed, and the application for leave to appeal against the sentence was refused.

Orders

Orders of the court

1. Appeal against convictions dismissed.

2. Application for leave to appeal against sentence refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

For the reasons that follow, the appeal and the application for leave to appeal should fail.The evidence at the trial The appellant’s daughter, whom I will call TR, had arranged to have a party at the appellant’s house to celebrate her recent birthday. TR did not live with the appellant, and the frequency of her visits to his house became a matter of significance in the reasoning of the judge. At least for most of the time, TR lived with her mother. The complainant was one of TR’s friends who gathered at the house, intending to drink there before going to a bar in the Brisbane CBD. The complainant then intended to return to the house to sleep there overnight. But after drinking too much in the evening, the complainant was too drunk to accompany others to the CBD, and she fell asleep in one of the bedrooms. It was in that room that the offences were said to have been committed, in the early hours of the following morning. The appellant was at home on that evening, and went with the group to the CBD. The complainant had not met the appellant prior to that night. Her evidence was that when she arrived at the house, she was shown to the room, in which she later slept, by the appellant. The appellant’s evidence was that this did not happen. That became a factual issue, which one or both of the parties considered to be relevant as indicating the likelihood that the appellant would have known, on his return from the CBD, where the complainant was sleeping. The appellant’s evidence was that before the group went to the CBD, he was with them for only half of the time that the celebrations were occurring at the house. He said he did not take much notice of the complainant and only had a passing conversation with her. Some of his friends were also at the party. The appellant’s recollection was that the complainant was intoxicated. He gave evidence that he had seen her vomit in the foyer area of his house and that she had earlier been drinking tequila from a bottle. The complainant accepted that she became very intoxicated and, although she did not remember doing so, that she had vomited during the night. She denied that she had also smoked cannabis on the night, but another guest who was at the party testified that he was certain that the complainant had done so. The complainant had no memory of whether she required any assistance to get to the bedroom, where she went to sleep. She recalled waking up at 4 am to go to the toilet, before returning to the room and going back to sleep. She was then awoken when a man, whom she identified as the appellant, entered her room. The complainant said that the bedroom door was open when the assault began, and it was by the light which she said was coming through the open door that she was able to identify the appellant. TR and her boyfriend slept the night at the house, and had no recollection of a light being on. The complainant detailed the extensive physical contact with the appellant, which she said occurred over a period of 15 to 20 minutes. The complainant said that the assault ended only when she told the man that she was going to scream. He then got off the bed, and she was able to “clearly make out his face” from which she was certain that the man was the appellant.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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