R v WAC

[2008] QCA 151

SUPREME COURT OF QUEENSLAND

CITATION:

R v WAC [2008] QCA 151

PARTIES:

R
v
WAC
(appellant)

FILE NO/S:

CA No 262 of 2007
DC No 60 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Kingaroy

DELIVERED ON:

13 June 2008

DELIVERED AT:

Brisbane

HEARING DATE:

6 March 2008

JUDGES:

Holmes JA, Atkinson and Mullins JJ
Separate reasons for judgment of each member of the Court, Atkinson and Mullins JJ concurring as to the order made, Holmes JA dissenting

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – where jury found appellant guilty of one count of rape and not guilty on a second count – where complainant’s evidence on the first count was tangentially substantiated by other witnesses – where there were weaknesses in complainant’s evidence on second count – whether guilty verdict on first count was unreasonable –whether verdicts were inconsistent

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE – MISDIRECTION AND NON-DIRECTION – where trial amounted to a “word against word” case – where weaknesses in complainant’s evidence on second count of rape – where trial judge’s direction over-stated tangentially corroborating evidence in relation to the first count of rape – where Markuleski order was not sought at trial – whether trial judge should have given a Markuleski direction – whether a miscarriage of justice occurred

R v Ford [2006] QCA 142, considered
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, distinguished
R v S (2002) 129 A Crim R 339; [2002] QCA 167, considered
R v Smillie (2002) 134 A Crim R 100; [2002] QCA 341, considered

COUNSEL:

A W Moynihan SC, with J Benjamin, for the appellant
M J Copley for the respondent

SOLICITORS:

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

1. HOLMES JA:  The appellant went to trial on two counts of rape of his niece S.  He was convicted on the first count, an offence alleged to have been committed between 31 December 1983 and 22 November 1986 at Wacol, and was acquitted of the second count, concerning an offence allegedly committed between 1 November 1986 and 8 December 1986 at Inala.  He appeals against the conviction on the grounds that it was inconsistent with his acquittal on the second count, so as to be unsafe; that the trial judge erred in failing to give a Markuleski[1] direction; that although the learned trial judge gave a Longman direction, he rendered it ineffective by subsequent comments; and that the guilty verdict was, on all the evidence, unreasonable.

   [1]R v Markuleski (2001) 52 NSWLR 82, at 121-122.

The evidence at trial

1. The complainant, S, was 29 years old at the time…