Court of Appeal (Qld)|2003-03-07|Before: Davies and McPherson JJA and Philippides JSeparate, reasons for judgment of each member of the Court, each concurring as to the, orders made.
Davies and McPherson JJA and Philippides JSeparate, reasons for judgment of each member of the Court, each concurring as to the, orders made.
Catchwords
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL
AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION
- GENERAL
MATTERS - OTHER MATTERS - where appellant was a professional boxer - where
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEALAND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION- GENERALMATTERS - OTHER MATTERS - where appellant was a professional boxer - whereappellant punched the complainant several timesin the face - where appellant'sdefence was accident - where trial judge's direction to the jury was consistentwith that suggestedin R v Taitersex parte Attorney-General [1996] QCA 232[1997] 1QdR 333 - whether inconsistent with the decision in R v Van den Bemd[1995] 1 QdR 401 - whether trial judge's direction was amisdirectionCRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTERCONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION ANDNON-DIRECTION- GENERAL MATTERS - OTHER MATTERS - where appellant pleadedself-defence - where trial judge's direction ambiguous as to the necessarystateof mind of the accused - where trial judge corrected this error immediately -
where trial judge correctly re-directed on this
point - whether trial judge's
direction was a misdirectionCRIMINAL LAW - APPEAL AND NEW TRIAL AND
INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - IMPROPER
ADMISSION
OR REJECTION OF EVIDENCE - where appellant interviewed by television
journalist - where evidence of conversation adduced - where
statement of
appellant in conversation false - whether statement admissibleCRIMINAL
LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE
- FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES
OF OFFENCE - where appellant
sentenced to two years imprisonment suspended after eight months - where
complainant instigator of attack
- where complainant incompetently drunk - where
appellant professional boxer - where appellant's criminal history disclosed one
excessiveCriminal Code 1899 (Qld), s 23Edwards v The
Queen [1993] HCA 63
(1993) 178 CLR 193, consideredKaporonovski v The Queen
[1973] HCA 35
(1975) 133 CLR 209, cited
R v Camm [1999] QCA 101
CA No 431 of 1998, 1 April 1999,
considered
R v Dodd [1998] QCA 323
CA No 241 of 1998, 17 September 1998,
considered
R v Francisco [1999] QCA 212
CA No 59 of 1999, 8 June 1999,
considered
R v Grimley [2000] QCA 64
CA No 362 of 1999, 14 March 2000
considered
R v Steindl [2001] QCA 315
CA No 80 of 2001, 3 August 2001
[2001]
QCA 434
CA No 80 of 2001, 12 October 2001, considered
R v Taiters
ex parte Attorney-General [1996] QCA 232
[1997] 1 QdR 333,
discussed
R v Van den Bemd [1995] 1 QdR 401, discussed
Judgment (8 paragraphs)
[1]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - OTHER MATTERS - where appellant was a professional boxer - where appellant punched the complainant several times in the face - where appellant's defence was accident - where trial judge's direction to the jury was consistent with that suggested in R v Taiters; ex parte Attorney-General[1996] QCA 232; [1997] 1 QdR 333 - whether inconsistent with the decision in R v Van den Bemd [1995] 1 QdR 401 - whether trial judge's direction was a misdirection
[2]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - OTHER MATTERS - where appellant pleaded self-defence - where trial judge's direction ambiguous as to the necessary state of mind of the accused - where trial judge corrected this error immediately - where trial judge correctly re-directed on this point - whether trial judge's direction was a misdirection
[3]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - where appellant interviewed by television journalist - where evidence of conversation adduced - where statement of appellant in conversation false - whether statement admissible
[4]
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENCE - where appellant sentenced to two years imprisonment suspended after eight months - where complainant instigator of attack - where complainant incompetently drunk - where appellant professional boxer - where appellant's criminal history disclosed one prior assault occasioning bodily harm - whether sentence manifestly excessive
Kaporonovski v The Queen[1973] HCA 35; (1975) 133 CLR 209, cited R v Camm[1999] QCA 101; CA No 431 of 1998, 1 April 1999, considered R v Dodd[1998] QCA 323; CA No 241 of 1998, 17 September 1998, considered R v Francisco[1999] QCA 212; CA No 59 of 1999, 8 June 1999, considered R v Grimley[2000] QCA 64; CA No 362 of 1999, 14 March 2000 considered R v Steindl[2001] QCA 315; CA No 80 of 2001, 3 August 2001; [2001] QCA 434; CA No 80 of 2001, 12 October 2001, considered R v Taiters; ex parte Attorney-General[1996] QCA 232; [1997] 1 QdR 333, discussed R v Van den Bemd [1995] 1 QdR 401, discussed
[7]
Flehr & Associates (Toowoomba) for appellant/applicant
[8]
Director of Public Prosecutions (Queensland) for respondent