Court of Appeal (Qld)|2002-09-17|Before: McPherson JA, Mackenzie and Atkinson JJ, Separate reasons for judgment of each member of the Court, each concurring, as to the orders made
McPherson JA, Mackenzie and Atkinson JJ, Separate reasons for judgment of each member of the Court, each concurring, as to the orders made
Catchwords
APPEAL AND NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS –
OBJECTIONS AND POINTS NOT TAKEN AT TRIAL – where at
appeal request by
appellant’s counsel to adjourn hearing refused – where appellant
Source
Original judgment source is linked above.
Catchwords
APPEAL AND NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS –OBJECTIONS AND POINTS NOT TAKEN AT TRIAL – where atappeal request byappellant’s counsel to adjourn hearing refused – where appellantraised additional matters to thoseargued by his counsel after the appeal washeard – where appellant argued that his legal representation had beeninadequateat trial – s 23 Criminal Code – consideration oftest in R v PaddonCRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW –MISDIRECTION ANDNON-DIRECTION – whether trial judge failed to direct that each count beconsidered separately – wherejury asked for clarification of theincidents to which particular counts relates – whether this suggests thatthe jury wasaware that each count required separate considerationCRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICITON
– OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW –
MISDIRECTION AND
NON-DIRECTION –– IMPROPER ADMISSION OR REJECTION OF EVIDENCE -
GENERAL PRINCIPLES - whether trial judge
failed to direct that the circumstances
involving each complaint were to be considered separately and as to
admissibility of evidence
concerning one complainant in respect of the other
where appellant had confessed in a detailed way to the offences against both
complainants
– where appellant questioned the reliability of the
confession of the youngest victim – where youngest complainant too
young
to give evidence – whether absence of supporting evidence
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICITON
– OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW –
PARTICULAR
GROUNDS – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – whether no
case to answer on counts relating to administration
of a “stupefying
drug” – whether evidence established that prior to the committing of
the offences the appellant
blew cannabis smoke into the female
complainant’s mouth – whether cannabis is a “stupefying”
drug
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICITON
– OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW –
MISDIRECTION AND
NON-DIRECTION – whether trial judge failed to direct on s 23 Criminal
Code – where onus on prosecution to establish beyond reasonable doubt
that the act of an accused was not an act done independently
of the exercise of
his will – where medical evidence suggests that the appellant’s
condition due to voluntary intoxication
by drugs – not a case where the
issues of insanity and sane automatism are both open – consideration of
the element of
“intent”
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – PARTICULAR GROUNDS –
UNREASONABLE OR
INSUPPORTABLE VERDICT – whether jury’s verdict unsafe and
unsatisfactory – where appeal against
conviction dismissed
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE
– APPEAL BY
ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATION TO INCREASE
SENTENCE – OFFENCE AGAINST THE
PERSON– where application for leave
to appeal against sentence on grounds that it is manifestly excessive –
where an
Attorney-General’s appeal on the grounds that sentence is
manifestly inadequate – where there were serious aggravating
factors
– where general principles derived from the authorities applied - where
declaration of a serious violent offenceCriminal Code(Qld) s 23, s
26, s 27, s 28, s 316, s 668E(1A)Evidence Act 1977 (Qld) s
93APenalties and Sentences Act 1992 (Qld) s 161BCooper v
McKenna
ex parte Cooper [1960] Qd R 406, consideredFalconer v The
Queen [1990] HCA 49
(1990) 171 CLR 30, consideredHawkins v the Queen [1994] HCA 28
(1994) 179
CLR 500, consideredR v Dugdale CA No 272 of 1991, 13 December 1991,
consideredR v Eather
ex parte Attorney-General CA No 476 of 1994,
consideredR v Melano
ex parte Attorney-General [1994] QCA 523
[1995] 2 Qd R 186,
citedR v Milloy [1993] 1 Qd R 298, consideredR v Murcott
and Ah See [1893] VicLawRp 67
(1893) 19 VLR 408, distinguishedR v
Paddon [1998] QCA 248
(1999) 2 Qd R 387, consideredR v Pearce CA No 212 of 1997,
8 August 1997, consideredR v Steedman [1996] QCA 93, CA No 233 of
1994, consideredR v Thornely (1998) 3 VR 888, distinguished
Judgment (17 paragraphs)
[1]
APPEAL AND NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - OBJECTIONS AND POINTS NOT TAKEN AT TRIAL - where at appeal request by appellant's counsel to adjourn hearing refused - where appellant raised additional matters to those argued by his counsel after the appeal was heard - where appellant argued that his legal representation had been inadequate at trial - s 23 Criminal Code - consideration of test in R v Paddon CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW - MISDIRECTION AND NON-DIRECTION - whether trial judge failed to direct that each count be considered separately - where jury asked for clarification of the incidents to which particular counts relates - whether this suggests that the jury was aware that each count required separate consideration CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICITON - OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW - MISDIRECTION AND NON-DIRECTION -- IMPROPER ADMISSION OR REJECTION OF EVIDENCE - GENERAL PRINCIPLES - whether trial judge failed to direct that the circumstances involving each complaint were to be considered separately and as to admissibility of evidence concerning one complainant in respect of the other where appellant had confessed in a detailed way to the offences against both complainants - where appellant questioned the reliability of the confession of the youngest victim - where youngest complainant too young to give evidence - whether absence of supporting evidence CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICITON - OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - whether no case to answer on counts relating to administration of a "stupefying drug" - whether evidence established that prior to the committing of the offences the appellant blew cannabis smoke into the female complainant's mouth - whether cannabis is a "stupefying" drug CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICITON - OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW - MISDIRECTION AND NON-DIRECTION - whether trial judge failed to direct on s 23 Criminal Code - where onus on prosecution to establish beyond reasonable doubt that the act of an accused was not an act done independently of the exercise of his will - where medical evidence suggests that the appellant's condition due to voluntary intoxication by drugs - not a case where the issues of insanity and sane automatism are both open - consideration of the element of "intent" CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - whether jury's verdict unsafe and unsatisfactory - where appeal against conviction dismissed CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATION TO INCREASE SENTENCE - OFFENCE AGAINST THE PERSON- where application for leave to appeal against sentence on grounds that it is manifestly excessive - where an Attorney-General's appeal on the grounds that sentence is manifestly inadequate - where there were serious aggravating factors - where general principles derived from the authorities applied - where declaration of a serious violent offence
[2]
Criminal Code(Qld) s 23, s 26, s 27, s 28, s 316, s 668E(1A)