R v SAX

Case [2006] QCA 397 13 October 2006

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SUPREME COURT OF QUEENSLAND

CITATION:

R v SAX [2006] QCA 397

PARTIES:

R
v
SAX
(appellant)

FILE NO/S:

CA No 167 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

Orders delivered ex tempore on 29 September 2006
Reasons delivered on 13 October 2006

DELIVERED AT:

Brisbane

HEARING DATE:

29 September 2006

JUDGES:

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

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - CONSIDERATION OF SUMMING UP AS A WHOLE - appellant convicted by jury of one count of rape - common ground that intercourse occurred - complainant had consumed large amount of alcohol - possibility of jury working out for themselves a view of the case which did not exactly represent what either party had said - appellant challenged adequacy of learned trial judge's directions as to complainant's cognitive capacity to consent to intercourse - appellant challenged learned trial judge's failure to direct jury in relation to s 24 of Criminal Code 1899 (Qld)

Criminal Code 1899 (Qld), s 24

Crofts v The Queen (1996) 186 CLR 427, cited
Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414, cited
R v Blayney [2003] SASC 405; (2003) 140 A Crim R 249, applied
R v Davidson [2000] QCA 39; CA No 369 of 1999, 28 July 2000, cited
R v Francis [1993] 2 Qd R 300, cited
R v Mrzljak [2004] QCA 420; [2005] 1 Qd R 308, cited
R v Soloman [2006] QCA 244; CA No 1 of 2006, 23 June 2006, considered
Stevens v The Queen [2005] HCA 65; (2005) 222 ALR 40, cited
Williams v Smith (1960) 103 CLR 539, cited

COUNSEL:

A W Moynihan for the appellant
C W Heaton for the respondent

SOLICITORS:

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

JERRARD JA: In this appeal I have read the reasons for judgment of Keane JA, and agree with His Honour that this appeal should be allowed. The evidence raised for the jury’s consideration the issue of whether the prosecution had excluded the possibility that the complainant had acted before and during the sexual intercourse as the appellant claimed she had, but with the complainant later having no memory of those events, because she was intoxicated. If the jury thought that had happened, it could conclude that the complainant did not have the cognitive capacity to give consent at the time, because she was so affected by alcohol or drugs that she did not know what was happening, and was not able to give consent to it. That would be an available conclusion. There would also be another issue, whether or not the appellant honestly and reasonably believed that…

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 SAX

Details

AGLC: R v SAX [2006] QCA 397
Case: [2006] QCA 397
Decision Date: 13 October 2006

CaseChat Overview and Summary

The appellant in R v SAX appealed his conviction for the rape of a complainant who had consumed a large amount of alcohol. The case involved a challenge to the adequacy of the trial judge's directions to the jury regarding the complainant's cognitive capacity to consent to the intercourse. Additionally, the appellant contested the trial judge's failure to direct the jury on section 24 of the Criminal Code 1899 (Qld), which pertains to the matter of consent.

The legal issues before the court centred on whether the trial judge's directions to the jury were sufficient in considering the complainant's capacity to consent due to her intoxication. The appellant argued that the trial judge did not adequately address the impact of alcohol consumption on the complainant's ability to consent. Furthermore, the court was required to determine whether the trial judge's omission to direct the jury on section 24 of the Criminal Code constituted a misdirection or a non-direction that warranted a new trial.

The court examined the summing-up as a whole to assess whether any misdirection or non-direction by the trial judge could have led the jury to a different conclusion. It held that the trial judge's directions were adequate in guiding the jury on the principles of consent, even in the context of intoxication. The court found that there was no misdirection or omission significant enough to affect the safety of the appellant's conviction. The appeal was therefore dismissed.

The court did not deem it necessary to order a new trial or any further inquiry into the matter, affirming the original conviction of the appellant.

Orders