R v Webb - [2004] QCA 448

SUPREME COURT OF QUEENSLAND

CITATION:

R v Webb [2004] QCA 448

PARTIES:

R
v
WEBB, Reginald Joseph

(appellant/applicant)

FILE NO/S:

CA No 222 of 2004

DC No 415 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against conviction and sentence

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

26 November 2004

DELIVERED AT:

Brisbane

HEARING DATE:

15 November 2004

JUDGES:

McMurdo P, McPherson JA, Philippides J

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal against conviction dismissed;

2. Application for leave to appeal against sentence dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – where prosecutor, in closing address to jury, commented that the complainant had travelled a long distance to give evidence, but that the appellant, by comparison, had not walked from the dock to the witness box to give evidence – whether such comments contravened Azzopardi v R or Palmer v R – where trial judge was not asked to correct comments of prosecutor and did not do so – whether any miscarriage of justice

CRIMINAL LAW – SENTENCING – RAPE – whether sentences imposed manifestly excessive

Criminal Code 1899 (Qld) s 668E(1)

Azzopardi v R (2001) 205 CLR 50, distinguished
Palmer v R (1998) 193 CLR 1, applied
R v DAH [2004] QCA 419, cited
R v Fellowes [1987] 2 Qd R 606, cited

R v Soma (2003) 212 CLR 299, cited

COUNSEL:

D Lynch for the appellant

D Meredith for the respondent

SOLICITORS:

Price & Roobottom for the appellant

Director of Public Prosecutions (Qld) for the respondent

McMURDO P: I agree with McPherson JA's reasons for dismissing the appeal against conviction and refusing the application for leave to appeal against sentence.

McPHERSON JA: The appellant appeals against his conviction after a trial in the District Court on three counts of rape and three counts of indecent assault. The complainant in respect of each of the charges was a 29 year old Japanese woman, who was visiting Australia when the offences were committed against her on the night of 8/9 January 2001 at a tourist farm near Canungra. Counts 2 and 4 charged that the appellant inserted his finger in the complainant’s vagina, which by statute in Queensland now constitutes the offence of rape, as also does the insertion of the appellant’s penis in her mouth (count 5). The other counts charged offences of indecent assault by touching and licking the complainant on her breasts and genital area (counts 1 and 3) or, in the case of count 6, masturbating and ejaculating over the complainant’s chest. On all the offences, he was sentenced to an effective term of imprisonment for six years.

Each of the offences was, of course, alleged to have taken place without the complainant’s consent, and it was consent, or the lack of it, that formed the only issue at trial and on appeal. Mr Farr of counsel who appeared…

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 Webb

Details

AGLC: R v Webb [2004] QCA 448
Case: [2004] QCA 448
Decision Date: 26 November 2004

CaseChat Overview and Summary

The case of R v Webb involved the appellant, Webb, who was convicted of rape and subsequently sentenced. The appeal against the conviction and sentence was heard in the relevant appellate court. The appellant contested the conviction on the grounds that the prosecutor's comments during the closing address to the jury were misdirected and could have misled the jury, potentially contravening the principles established in Azzopardi v R and Palmer v R. The appellant further argued that the trial judge's failure to intervene or correct the prosecutor's comments constituted a miscarriage of justice. In addition, the appellant contested the severity of the sentence, claiming it was manifestly excessive.

The court was tasked with determining whether the prosecutor's comments during the closing address constituted a misdirection that could have led to a miscarriage of justice. The court considered the relevance and impact of the prosecutor's remarks about the complainant's and the appellant's physical actions during the trial. The court also assessed whether the trial judge's inaction in not correcting the prosecutor's comments amounted to a miscarriage of justice. Furthermore, the court examined the severity of the sentence imposed, determining whether it was manifestly excessive under the circumstances of the case.

In its reasoning, the court found that the prosecutor's comments, while perhaps not ideal, did not rise to the level of a misdirection that would constitute a miscarriage of justice. The court held that the trial judge's failure to intervene did not prejudice the fairness of the trial. Additionally, the court determined that the sentence imposed was appropriate and not manifestly excessive, considering the gravity of the offence and the need to uphold public confidence in the criminal justice system.

The court dismissed the appeal against the conviction and the application for leave to appeal against the sentence. Consequently, Webb's conviction and sentence were upheld, with no orders for a new trial or sentence review.

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

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Webb [2004] QCA 448
PARTIES:	R v WEBB, Reginald Joseph (appellant/applicant)
FILE NO/S:	CA No 222 of 2004 DC No 415 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against conviction and sentence
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	26 November 2004
DELIVERED AT:	Brisbane
HEARING DATE:	15 November 2004
JUDGES:	McMurdo P, McPherson JA, Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal against conviction dismissed; 2. Application for leave to appeal against sentence dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – where prosecutor, in closing address to jury, commented that the complainant had travelled a long distance to give evidence, but that the appellant, by comparison, had not walked from the dock to the witness box to give evidence – whether such comments contravened Azzopardi v R or Palmer v R – where trial judge was not asked to correct comments of prosecutor and did not do so – whether any miscarriage of justice CRIMINAL LAW – SENTENCING – RAPE – whether sentences imposed manifestly excessive Criminal Code 1899 (Qld) s 668E(1) Azzopardi v R (2001) 205 CLR 50, distinguished Palmer v R (1998) 193 CLR 1, applied R v DAH [2004] QCA 419, cited R v Fellowes [1987] 2 Qd R 606, cited R v Soma (2003) 212 CLR 299, cited
COUNSEL:	D Lynch for the appellant D Meredith for the respondent
SOLICITORS:	Price & Roobottom for the appellant Director of Public Prosecutions (Qld) for the respondent