Court of Appeal (Qld)|2002-03-15|Before: McMurdo P, Davies JA, Byrne JSeparate reasons for, judgment of each member of the Court, Davies JA and Byrne J concurring as to the, orders made, McMurdo P dissenting, in part
McMurdo P, Davies JA, Byrne JSeparate reasons for, judgment of each member of the Court, Davies JA and Byrne J concurring as to the
Catchwords
CRIMINAL LAW – PARTICULAR OFFENCES – MISCELLANEOUS OFFENCES AND
MATTERS – OTHER OFFENCESAPPEAL AND NEW TRIAL – NEW TRIAL
– IN GENERAL AND PARTICULAR GROUNDS – INCONSISTENCY BETWEEN FINDINGS
OF JURY –
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – PARTICULAR OFFENCES – MISCELLANEOUS OFFENCES ANDMATTERS – OTHER OFFENCESAPPEAL AND NEW TRIAL – NEW TRIAL– IN GENERAL AND PARTICULAR GROUNDS – INCONSISTENCY BETWEEN FINDINGSOF JURY –INCONSISTENCY BETWEEN DIFFERENT FINDINGS–PARTICULAR CASES - where appellant and his wife jointly charged with twocounts of stalking against neighbour husband and wife – where appellantconvicted on count 1 but acquitted on count 2 – where appellant's wifefound not guilty on both counts – whether verdictof guilty on count 1 isunsafe and unsatisfactory because it is inconsistent with the acquittal ofappellant’s wife and acquittalon count 2 – whether open to jury tofind appellant's conduct satisfied s 359B(d)(i) and (ii) Criminal Code inrespect of wife complainant but not in respect of husband complainantCRIMINAL LAW – EVIDENCE – MATTERS RELATING TO PROOF– BURDEN OF PROOF – DIRECTION TO JURY – where nodirection by trial judge that Crown bore the onus of proving that thecircumstances of the alleged unlawful stalking were
unreasonable – whether
s 359B Criminal Code imports a notion of reasonableness in its
elementsCRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER
CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS –
MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – CONSIDERATION OF
SUMMING UP AS A WHOLE – whether judge’s summing up lacked
balance because the explanation of the prosecution case was more detailed than
that of the
defence JURY – THE JURY IN CRIMINAL PROCEEDINGS
– GENERAL MATTERS - where over 150 particularised alleged acts of
stalking – where verdict does not indicate which acts were proven beyond
reasonable
doubt – where no application by defence counsel for special
verdict – whether trial judge should have requested a special
verdict for
purpose of sentencingCRIMINAL LAW – APPEAL AND NEW TRIAL –
APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS
TO REDUCE SENTENCE – WHEN REFUSED - where sentence of 3 years
imprisonment and restraining order of 15 years imposed – where no plea of
guilty and no display of
remorse – where one prior conviction and
positive references – where head sentence increased from 3 to 5 years -
where
sentence not manifestly excessiveCriminal Code (Qld),
s 359A, s 359B, s 359E, s 359FMackenzie v R (1996) 190 CLR
348, consideredR v Allie [1998] QCA 75
[1999] 1 QdR 618, consideredR v
Hallett [1997] QCA 418, CA No 301 of 1997, 21 November 1997, considered
R v Haselich [1967] QdR 183, consideredR v Holznagel
[1998] QCA 26, CA No 426 of 1997, 6 February 1998, consideredR v P
[1999] QCA 411
[2000] 2 QdR 401, considered
R v Rosenlund [1997] QCA 311, CA No 271 of 1997, 26 August 1997,
considered
Judgment (13 paragraphs)
[1]
CRIMINAL LAW - PARTICULAR OFFENCES - MISCELLANEOUS OFFENCES AND MATTERS - OTHER OFFENCES
[2]
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - INCONSISTENCY BETWEEN FINDINGS OF JURY - INCONSISTENCY BETWEEN DIFFERENT FINDINGS- PARTICULAR CASES - where appellant and his wife jointly charged with two counts of stalking against neighbour husband and wife - where appellant convicted on count 1 but acquitted on count 2 - where appellant's wife found not guilty on both counts - whether verdict of guilty on count 1 is unsafe and unsatisfactory because it is inconsistent with the acquittal of appellant's wife and acquittal on count 2 - whether open to jury to find appellant's conduct satisfied s 359B(d)(i) and (ii) Criminal Code in respect of wife complainant but not in respect of husband complainant
[3]
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - BURDEN OF PROOF - DIRECTION TO JURY - where no direction by trial judge that Crown bore the onus of proving that the circumstances of the alleged unlawful stalking were unreasonable - whether s 359B Criminal Code imports a notion of reasonableness in its elements
[4]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - CONSIDERATION OF SUMMING UP AS A WHOLE - whether judge's summing up lacked balance because the explanation of the prosecution case was more detailed than that of the defence
[5]
JURY - THE JURY IN CRIMINAL PROCEEDINGS - GENERAL MATTERS - where over 150 particularised alleged acts of stalking - where verdict does not indicate which acts were proven beyond reasonable doubt - where no application by defence counsel for special verdict - whether trial judge should have requested a special verdict for purpose of sentencing
[6]
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - where sentence of 3 years imprisonment and restraining order of 15 years imposed - where no plea of guilty and no display of remorse - where one prior conviction and positive references - where head sentence increased from 3 to 5 years - where sentence not manifestly excessive
[7]
Criminal Code (Qld), s 359A, s 359B, s 359E, s 359F