Court of Appeal

R v Holland [2017] QCA 069 (16/246) Gotterson JA and Boddice and Dalton JJ 21 April 2017

Full-text: QCA17-069.pdf


CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was charged on indictment on three counts of offending – where the appellant was convicted by a jury of Count 1, entering a dwelling at night with intent to commit an indictable offence, and Count 2, robbery in the circumstances of aggravation, namely, that the appellant used personal violence and was armed with a knife – where the appellant was acquitted by the same jury of Count 3, rape – where the appellant contends both Count 2 and Count 3 relied upon acceptance of the complainant as a credible and reliable witness – whether the evidence of Count 2 was of comparable quality to the evidence of Count 3 – whether the different verdicts amounted to an affront to logic and common sense – whether the conviction ought be set aside

APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – where the appellant’s case at trial sought to undermine the reliability of the complainant’s evidence – where counsel for the appellant at trial sought a Markuleski direction – where the jury was directed to take into account any doubt about the presence of a knife in their consideration of the claim of rape – where no redirection was sought at trial – where the appellant submits that the direction was inadequate as it did not state the converse, namely, that doubt about the penile-vaginal penetration should be taken into account when considering the presence of the knife – whether the absence of the direction sought occasioned a miscarriage of justice