R v The Queen - [2003] QCA 71

SUPREME COURT OF QUEENSLAND

CITATION:

R v R [2003] QCA 71

PARTIES:

R
v
R
(appellant)

FILE NO/S:

CA No 203 of 2002
DC No 108 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

28 February 2003

DELIVERED AT:

Brisbane

HEARING DATE:

3 February 2003

JUDGES:

McPherson and Jerrard JJA and Mullins J
Separate reasons for judgment of each member of the Court; each concurring as to the orders made

ORDER:

1. Appeal against conviction dismissed
2. Application for leave to appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – OTHER CASES – where contradictions existed between complainant’s evidence in chief and her statements to investigating police officers – where appellant submits that the absence of motile spermatozoa in vaginal swabs taken from the complainant left open the possibility that consensual intercourse occurred between the complainant and the appellant – whether verdict unsafe and unsatisfactory

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED – PARTICULAR CASES – where DNA samples taken from appellant when charged with rape several years prior to this offence – where appellant later acquitted of that offence – where governing legislation did not provide for the disposal or destruction of DNA samples in circumstances of acquittal – where appellant submits that analysis of the earlier sample for the purposes of the current offence was unlawful or unauthorised – whether learned trial judge ought to have excluded the DNA evidence

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENDER – where appellant convicted of rape several years prior in similar circumstances to current offence – where appellant showed complete lack of remorse – whether sentence manifestly excessive

Bunning v Cross (1978) 141 CLR 54, applied
M v The Queen (1994) 181 CLR 487, applied
R v Mallie [2000] QCA 188; CA No 49 of 2000, 17 May 2000, distinguished
R v Soper [1994] QCA 254; CA No 119 of 1994, 15 June 1994, considered
R v Swaffield (1998) 192 CLR 159, considered

Criminal Code (Qld), s 259, s 668E
Police Powers and Responsibilities Act 2000 (Qld), s 315, s 316, s 317

COUNSEL:

A J Rafter for the appellant
M J Copley for the respondent

SOLICITORS:

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

McPHERSON JA: I agree with the reasons of Jerrard JA for dismissing the appeal against conviction. I also agree, for the reasons his Honour has given, that the application for leave to appeal against sentence should be dismissed.

As to the question of retention of DNA samples, I would only add, perhaps unnecessarily, that there is a public interest not only 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 The Queen

Details

AGLC: R v The Queen [2003] QCA 71
Case: [2003] QCA 71
Decision Date: 28 February 2003

CaseChat Overview and Summary

The appeal was brought by the appellant against his conviction of rape, and the sentence imposed by the Court of Appeal of the Supreme Court of Queensland. The appellant was convicted of raping the complainant on 30 March 1999. The primary judge had concluded that the evidence was sufficient to support a verdict of guilt beyond reasonable doubt. The appellant submitted that the verdict was unreasonable or unsatisfactory, in part because of the absence of motile spermatozoa in vaginal swabs taken from the complainant, which left open the possibility that consensual intercourse had occurred. The appellant also sought to exclude DNA evidence which was used to link him to the crime. The appellant further argued that the sentence was manifestly excessive, given his previous conviction for a similar offence and his lack of remorse.

The legal issues before the court were whether the verdict was unreasonable or unsatisfactory, whether the trial judge should have excluded the DNA evidence, and whether the sentence was manifestly excessive. The court considered the evidence and found that there were significant contradictions in the complainant's evidence, but that these did not render the verdict unreasonable or unsatisfactory. The court also found that the DNA evidence was properly admitted, and that the sentence was not manifestly excessive. The appeal against conviction and the application for leave to appeal against sentence were dismissed.

The court held that the verdict was not unreasonable or unsatisfactory, despite the contradictions in the complainant's evidence. The court found that the complainant's evidence was otherwise consistent, and that the absence of motile spermatozoa in the vaginal swabs did not necessarily mean that consensual intercourse had occurred. The court also held that the DNA evidence was properly admitted, as the appellant had not shown that the analysis of the earlier sample for the purposes of the current offence was unlawful or unauthorised. Finally, the court found that the sentence was not manifestly excessive, given the appellant's previous conviction for a similar offence and his lack of remorse.

The orders of the court were that the appeal against conviction be dismissed, and that the application for leave to appeal against sentence be dismissed.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

Contradictions in the Complainant’s Evidence. When that act was completed they both got up, she was pulled again into the car (the front seat) by her hair, driven to what she said was the Wacol Train Station, and pushed out of the door by the man. She then rang the police. The evidence at the trial was that Detective Elizabeth Hutchinson, the primary investigating officer, understood that uniform police officers had actually collected LT from the Riverview Railway Station, rather than the Wacol Railway Station. Riverview is four stations from Wacol. LT’s evidence in cross examination was that she had been drinking alcohol on 30 March 1999 in the afternoon at Musgrave Park before going to the Boundary Hotel. When she left the hotel she was carrying an open carton of a white wine, described as a fruity lexia. She agreed that by the time she was giving her complaint to Detective Hutchinson at the Ipswich CIB (sometime after 2.00 a.m. on 31 March 1999) she was falling asleep, drunk, and tired. The evidence established she had supplied an incorrect date of birth when first making her complaint by telephone at 1.32 a.m. that day, and did so because “they had a warrant on me”. The complaint then recorded was of rape by a man named “Mark”, who had been driving a white Holden vehicle; but when interviewed on tape later that morning by Detective Hutchinson, LT said she could not recall if the vehicle was a Holden or a Ford. She told Detective Hutchinson then that the man had gotten out of the car and approached her, started talking with her, and at that stage had pulled out an FBI badge. She also told Detective Hutchinson that whilst she had said in her original telephone complaint words to the effect of “Mark selling me for $20.00”, she had not in fact seen Mark earlier that night. The evidence was that she did know a man by the name of “Indian Mark”, but was unable to recall at the trial whether she had or had not seen Indian Mark at that hotel earlier that night. Cross examination established that she had told Detective Hutchinson in the taped interview that the man who raped her had said he needed to see someone at Wacol jail, and that LT said then she had said to him “I’ll come for a ride with you”. LT had denied in her own cross examination that she had agreed to go with him to Wacol. LT’s evidence in cross examination was that she had seen the man who raped her before, he being a regular drinker at the Boundary Hotel. She described him as having a big nose resembling a broken nose, and recalled having told Detective Hutchinson that the man “looks” like a “wog”. Although LT denied it in cross examination, Detective Hutchinson’s evidence was that LT said the man “speaks” like a “wog”. LT had also told Detective Hutchinson that she did not know the man, and had never seen him before. Other inconsistencies established were that although LT could not recall so saying, she did tell Detective Hutchinson that the man was 38 or 39 years of age, and had hit her once in the assault upon her. She had also told Detective Hutchinson that man had “grabbed her out of the car and chucked her into the back seat” and had raped her there; and that thereafter she had remained throughout in that back seat. In contrast, her evidence in chief and in cross examination had been that after being raped in the back seat of the car, she had gotten into the front seat, from which she had been forcibly evicted by the rapist at the railway station where she was left.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v R [2003] QCA 71
PARTIES:	R v R (appellant)
FILE NO/S:	CA No 203 of 2002 DC No 108 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	28 February 2003
DELIVERED AT:	Brisbane
HEARING DATE:	3 February 2003
JUDGES:	McPherson and Jerrard JJA and Mullins J Separate reasons for judgment of each member of the Court; each concurring as to the orders made
ORDER:	1. Appeal against conviction dismissed 2. Application for leave to appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – OTHER CASES – where contradictions existed between complainant’s evidence in chief and her statements to investigating police officers – where appellant submits that the absence of motile spermatozoa in vaginal swabs taken from the complainant left open the possibility that consensual intercourse occurred between the complainant and the appellant – whether verdict unsafe and unsatisfactory CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED – PARTICULAR CASES – where DNA samples taken from appellant when charged with rape several years prior to this offence – where appellant later acquitted of that offence – where governing legislation did not provide for the disposal or destruction of DNA samples in circumstances of acquittal – where appellant submits that analysis of the earlier sample for the purposes of the current offence was unlawful or unauthorised – whether learned trial judge ought to have excluded the DNA evidence CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENDER – where appellant convicted of rape several years prior in similar circumstances to current offence – where appellant showed complete lack of remorse – whether sentence manifestly excessive Bunning v Cross (1978) 141 CLR 54, applied M v The Queen (1994) 181 CLR 487, applied R v Mallie [2000] QCA 188; CA No 49 of 2000, 17 May 2000, distinguished R v Soper [1994] QCA 254; CA No 119 of 1994, 15 June 1994, considered R v Swaffield (1998) 192 CLR 159, considered Criminal Code (Qld), s 259, s 668E Police Powers and Responsibilities Act 2000 (Qld), s 315, s 316, s 317
COUNSEL:	A J Rafter for the appellant M J Copley for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent