R v Sant - [2005] QCA 474

SUPREME COURT OF QUEENSLAND

CITATION:

R v Sant [2005] QCA 474

PARTIES:

R
v
SANT, Paul Joseph Sydney
(appellant)

FILE NO/S:

CA No 251 of 2005
DC No 92 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

16 December 2005

DELIVERED AT:

Brisbane

HEARING DATE:

2 December 2005

JUDGES:

Williams and Jerrard JJA and Chesterman J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Appeal allowed1.

Verdict of guilty of rape set aside and in its place substitute a verdict of guilty of unlawful and indecent assault2.

Order that on the substituted verdict of guilty of indecent assault the appellant be convicted and sentenced to six months imprisonment3.

Declare that the time spent in custody between 8 September 2005 and the date of this order be time already served with respect to the sentence imposed by this Court4.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL ALLOWED – appellant convicted by a jury of rape – crown case was that the appellant penetrated the complainant’s vagina with his finger – conflicting accounts given by the complainant of what she experienced – where the complainant was asleep when the appellant made contact with her vagina – where the complainant made regular use of the term “touched” in her evidence – whether the evidence was sufficient to support a finding beyond reasonable doubt that actual penetration of the vagina had occurred

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL – MISDIRECTION AND NON-DIRECTION – where the jury deliberated on their verdict for over 24 hours – whether the learned trial judge erred in failing to give the jury a direction in accordance with Black v The Queen (1993) 179 CLR 44

Criminal Code Act 1899 (Qld), s 349, s 668F(2)

Black v The Queen (1993) 179 CLR 44, considered

R v Harper [2002] QCA 107; CA No 17 of 2002, 19 March 2002, cited
R v Hatch [1999] QCA 495; CA No 320 of 1999, 29 November 1999, cited
R v Hill [1995] QCA 450; CA No 303 of 1995, 5 September 1995, cited
R v J [2002] QCA 048; CA No 3 of 2002, 22 February 2002, cited
R v Keevers; Filewood [2004] QCA 207; CA No 90, 91, 98 and 132 of 2004, 18 June 2004, cited
R v M [1995] QCA 241; CA No 111 of 1995, 26 April 1995, cited
R v Murray [2005] QCA 188; CA No 43 of 2005, 3 June 2005, cited

COUNSEL:

S J Hamlyn-Harris for the appellant
M R Byrne for the respondent

SOLICITORS:

Legal Aid Queensland for…

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 Sant

Details

AGLC: R v Sant [2005] QCA 474
Case: [2005] QCA 474
Decision Date: 16 December 2005

CaseChat Overview and Summary

The appellant in this case was convicted by a jury of the crime of rape. The central issue in the appeal was whether the evidence presented at trial was sufficient to support a finding beyond reasonable doubt that the appellant had actually penetrated the complainant's vagina with his finger. The complainant provided conflicting accounts of the incident, which occurred while she was asleep, and consistently used the term "touched" in her testimony. The appeal also contested the trial judge's failure to provide a specific direction to the jury, in line with the decision in Black v The Queen, after the jury had deliberated for over 24 hours.

The court considered whether the evidence provided was sufficient to establish the specific act of penetration, as required for a conviction of rape, as opposed to the lesser offence of indecent assault. The appellant's counsel argued that the term "touched" used by the complainant was not synonymous with penetration, and that the jury's verdict was unreasonable or insupportable given the evidence. The court also examined whether the trial judge's omission to direct the jury according to Black v The Queen constituted a misdirection or non-direction that could have led to a miscarriage of justice.

The court found that the evidence did not support the jury's verdict of rape, as the term "touched" did not necessarily equate to penetration. The court held that the correct charge was unlawful and indecent assault. Furthermore, the court determined that the trial judge's failure to direct the jury in accordance with Black v The Queen did not amount to a miscarriage of justice in this case. Consequently, the appeal was allowed, the conviction for rape was set aside, and the appellant was convicted of indecent assault with a sentence of six months imprisonment. The court also declared that any time served by the appellant prior to the date of the order should be considered as time already served.

Orders

Orders of the court

Appeal allowed1.

Verdict of guilty of rape set aside and in its place substitute a verdict of guilty of unlawful and indecent assault2.

Order that on the substituted verdict of guilty of indecent assault the appellant be convicted and sentenced to six months imprisonment3.

Declare that the time spent in custody between 8 September 2005 and the date of this order be time already served with respect to the sentence imposed by this Court4.

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 Sant [2005] QCA 474
PARTIES:	R v SANT, Paul Joseph Sydney (appellant)
FILE NO/S:	CA No 251 of 2005 DC No 92 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	16 December 2005
DELIVERED AT:	Brisbane
HEARING DATE:	2 December 2005
JUDGES:	Williams and Jerrard JJA and Chesterman J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Appeal allowed1. Verdict of guilty of rape set aside and in its place substitute a verdict of guilty of unlawful and indecent assault2. Order that on the substituted verdict of guilty of indecent assault the appellant be convicted and sentenced to six months imprisonment3. Declare that the time spent in custody between 8 September 2005 and the date of this order be time already served with respect to the sentence imposed by this Court4.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL ALLOWED – appellant convicted by a jury of rape – crown case was that the appellant penetrated the complainant’s vagina with his finger – conflicting accounts given by the complainant of what she experienced – where the complainant was asleep when the appellant made contact with her vagina – where the complainant made regular use of the term “touched” in her evidence – whether the evidence was sufficient to support a finding beyond reasonable doubt that actual penetration of the vagina had occurred CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL – MISDIRECTION AND NON-DIRECTION – where the jury deliberated on their verdict for over 24 hours – whether the learned trial judge erred in failing to give the jury a direction in accordance with Black v The Queen (1993) 179 CLR 44 Criminal Code Act 1899 (Qld), s 349, s 668F(2) Black v The Queen (1993) 179 CLR 44, considered R v Harper [2002] QCA 107; CA No 17 of 2002, 19 March 2002, cited R v Hatch [1999] QCA 495; CA No 320 of 1999, 29 November 1999, cited R v Hill [1995] QCA 450; CA No 303 of 1995, 5 September 1995, cited R v J [2002] QCA 048; CA No 3 of 2002, 22 February 2002, cited R v Keevers; Filewood [2004] QCA 207; CA No 90, 91, 98 and 132 of 2004, 18 June 2004, cited R v M [1995] QCA 241; CA No 111 of 1995, 26 April 1995, cited R v Murray [2005] QCA 188; CA No 43 of 2005, 3 June 2005, cited
COUNSEL:	S J Hamlyn-Harris for the appellant M R Byrne for the respondent
SOLICITORS:	Legal Aid Queensland for…