R v Tribe

[2001] QCA 206

SUPREME COURT OF QUEENSLAND

CITATION:

R v Tribe [2001] QCA 206

PARTIES:

R
v
TRIBE, Michael Allan
(appellant)

FILE NO:

CA No 349 of 2000
DC No 1273 of 2000

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

1 June 2001

DELIVERED AT:

Brisbane

HEARING DATE:

9 May 2001

JUDGES:

McMurdo P, Williams JA and Mackenzie J
Separate reasons for judgment of each member of the court, each concurring as to the orders made.

ORDER:

Appeal against conviction dismissed.

CATCHWORDS:

CRIMINAL LAW - APPEAL & NEW TRIAL & INQUIRY AFTER CONVICTION – APPEAL & NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – GENERAL PRINCIPLES – where appeal against conviction of rape – whether the verdict of the jury was unreasonable and unable to be supported by the evidence – whether the complainant’s evidence was inconsistent and inherently unreliable – whether the learned trial judge erred in not exercising his discretion to allow cross-examination of the complainant concerning prior allegations of rape as conferred by s 4 Criminal Law (Sexual Offences) Act 1978.

Criminal Law (Sexual Offences) Act (Qld) 1978, s4

Bull v The Queen (2000) 171 ALR 613, considered
House v The King (1936) 55 CLR 499, considered

COUNSEL:

C Chowdhury  for the appellant
P Rutledge for the respondent

SOLICITORS:

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

1. McMURDO P:  I have read and agree with the reasons for judgment of Mackenzie J.

1. The appellant's case at trial was that he did not have sexual relations with the complainant; the complainant fabricated the allegation of rape, perhaps because she was psychologically unstable.

1. The learned primary judge gave detailed and unexceptional directions as to consent and proof beyond reasonable doubt of the elements of the offence.  There was no complaint as to those directions.

1. The judge emphasised to the jury that the case depended largely on the evidence of the complainant and that it was necessary to scrutinise her evidence with real care and attention before acting on it because of the complainant's history of psychiatric treatment and self-harm.  His Honour warned the jury "as to the danger of basing a conviction on her evidence in view of the possibility that her illness might have affected her capacity to give reliable evidence".  It is clear from the judge's summing-up that any weaknesses in the complainant's evidence were highlighted by defence counsel at trial and were squarely left for the jury's consideration.  The medical evidence and the tape recorded phone call between the complainant and the appellant were capable of supporting the complainant's evidence.  There was no evidence contradictory to that of the complainant given or called by the appellant.  In these circumstances the jury's guilty verdict was not unreasonable or unsupportable on the evidence.

1. I agree with Mackenzie J's analysis of the contention that the learned trial judge erred in refusing to allow defence counsel…