R v Singh - [2012] QCA 130

SUPREME COURT OF QUEENSLAND

CITATION:

R v Singh [2012] QCA 130

PARTIES:

R
v
SINGH, Gurpreet
(appellant)

FILE NO/S:

CA No 313 of 2011
DC No 893 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

22 May 2012

DELIVERED AT:

Brisbane

HEARING DATE:

11 April 2012

JUDGES:

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

ORDER:

Appeal dismissed

CATCHWORDS:

APPEAL AND NEW TRIAL – NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – JUDGE'S SUMMING UP – CONSIDERATION OF SUMMING UP AS A WHOLE – where appellant was found guilty after trial of a charge of sexual assault and a charge of rape – whether the appellant was denied a fair trial because the trial judge did not direct the jury regarding the excuse of mistake of fact in s 24 of the Criminal Code 1899 (Qld) – where at the trial defence counsel agreed there was no evidence to leave s 24 open to the jury – where the appellant argues that he mistakenly but honestly and reasonably believed actual consent was given with cognition and that evidence supporting the fact was adduced at trial – whether there was any evidence before the Trial Court from which it could be ‘reasonably inferred’ that the issue of mistake of fact arose

Criminal Code 1899 (Qld), s 24

Larson v G J Coles & Co Ltd; Ex parte G J Coles & Co Ltd (1984) 13 A Crim R 109, cited
Loveday v Ayre; Ex parte Ayre[1955] St R Qd 264, cited
R v Elomari [2012] QCA 27, cited and distinguished
R v SAX [2006] QCA 397, distinguished
R v Soloman [2006] QCA 244, distinguished
Sancoff v Holford, ex parte Holford [1973] Qd R 25, cited

COUNSEL:

F D Richards for the appellant
D C Boyle for the respondent

SOLICITORS:

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

MARGARET McMURDO P: I agree with Ann Lyons J's reasons for dismissing this appeal against conviction.

MUIR JA: I agree that the appeal should be dismissed for the reasons given by Ann Lyons J.

ANN LYONS J: The appellant seeks leave to appeal against his conviction for rape and sexual assault. He was found guilty after a two-day trial in the Brisbane District Court. The two count indictment contained, as count 1, a charge of sexual assault on 29 November 2010 and, as count 2, a charge of rape on the same day. He was sentenced on 25 October 2011 to imprisonment for two years in relation to the sexual assault and a concurrent sentence of eight years imprisonment in relation to the rape.

At the hearing of the appeal leave was sought to amend the grounds of appeal to a single ground that he was denied a…

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 Singh

Details

AGLC: R v Singh [2012] QCA 130
Case: [2012] QCA 130
Decision Date: 22 May 2012

CaseChat Overview and Summary

The appellant was found guilty of sexual assault and rape, and sought a new trial on the basis that the trial judge did not direct the jury on the excuse of mistake of fact, as provided for in section 24 of the Criminal Code 1899 (Qld). The appellant argued that he had honestly and reasonably believed that the complainant had given actual consent, and that there was evidence presented at trial to support this belief. The central issue before the court was whether the trial judge's failure to direct the jury on mistake of fact constituted a misdirection or non-direction that would entitle the appellant to a new trial.

The court considered the relevant legal principles and determined that the trial judge's summing up should be assessed as a whole. The court found that the defence counsel had expressly stated at trial that there was no evidence to leave section 24 open to the jury, and that the appellant had not provided any evidence before the Trial Court that could reasonably infer the issue of mistake of fact. The court concluded that the trial judge's summing up, when considered in its entirety, did not misdirect or fail to direct the jury on the issue of mistake of fact. Therefore, the appeal was dismissed and the conviction and sentence were upheld.

In light of the above findings, the court ordered that the appeal be dismissed and that the conviction and sentence of the appellant be upheld. The court did not find any merit in the appellant's argument that the trial judge's failure to direct the jury on mistake of fact constituted a misdirection or non-direction that would entitle him to a new trial. The court emphasised that the trial judge's summing up should be assessed as a whole and that the failure to direct the jury on a particular issue does not necessarily mean that the trial was unfair. The court concluded that the appellant's conviction and sentence were properly obtained and should be upheld.

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 Singh [2012] QCA 130
PARTIES:	R v SINGH, Gurpreet (appellant)
FILE NO/S:	CA No 313 of 2011 DC No 893 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	22 May 2012
DELIVERED AT:	Brisbane
HEARING DATE:	11 April 2012
JUDGES:	Margaret McMurdo P, Muir JA and Ann Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed
CATCHWORDS:	APPEAL AND NEW TRIAL – NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – JUDGE'S SUMMING UP – CONSIDERATION OF SUMMING UP AS A WHOLE – where appellant was found guilty after trial of a charge of sexual assault and a charge of rape – whether the appellant was denied a fair trial because the trial judge did not direct the jury regarding the excuse of mistake of fact in s 24 of the Criminal Code 1899 (Qld) – where at the trial defence counsel agreed there was no evidence to leave s 24 open to the jury – where the appellant argues that he mistakenly but honestly and reasonably believed actual consent was given with cognition and that evidence supporting the fact was adduced at trial – whether there was any evidence before the Trial Court from which it could be ‘reasonably inferred’ that the issue of mistake of fact arose Criminal Code 1899 (Qld), s 24 Larson v G J Coles & Co Ltd; Ex parte G J Coles & Co Ltd (1984) 13 A Crim R 109, cited Loveday v Ayre; Ex parte Ayre[1955] St R Qd 264, cited R v Elomari [2012] QCA 27, cited and distinguished R v SAX [2006] QCA 397, distinguished R v Soloman [2006] QCA 244, distinguished Sancoff v Holford, ex parte Holford [1973] Qd R 25, cited
COUNSEL:	F D Richards for the appellant D C Boyle for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent