McMurdo P, Holmes JA and Atkinson J, Judgment of the, Court
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE
– PARTICULAR
CIRCUMSTANCES INVOLVING MISCARRIAGE – MISDIRECTION AND NON-DIRECTION
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE– PARTICULARCIRCUMSTANCES INVOLVING MISCARRIAGE – MISDIRECTION AND NON-DIRECTION– where the appellant and twoco-accused were charged with attemptedmurder and alternatively with doing grievous bodily harm with intent –where appellantacquitted of attempted murder but convicted of grievous bodilyharm with intent – whether adequate directions were given regardings 8Criminal Code 1899 (Qld) – where the jury should have been directedthat they must be satisfied that the co-accused's act of causing grievousbodilyharm (the doing of an act rendering the principle offender liable to punishment)was the probable consequence of the commonintention between the appellant andco-accused – whether a miscarriage of justice resultedCRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– APPEAL AND NEW TRIAL – PARTICULAR GROUNDS –
MISDIRECTION AND
NON-DIRECTION – WHERE GROUNDS FOR INTERFERENCE WITH VERDICT –
GENERALLY – where jury directions
on inferences did not sufficiently deal
with competing rational inferences favourable to the appellant – where the
directions
did not meet the requirements set out in Knight v The Queen
[1992] HCA 56
(1992) 175 CLR 495
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – PARTICULAR GROUNDS –
MISDIRECTION AND
NON-DIRECTION – WHERE GROUNDS FOR INTERFERENCE WITH VERDICT –
GENERALLY – where the jury was misdirected
as to s 8 Criminal Code
1899 (Qld) and the drawing of inferences – whether a retrial should be
ordered
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – PARTICULAR GROUNDS –
ALTERNATIVE
VERDICTS – where the alternative verdict of grievous bodily harm
simpliciter should have been left for the jury's
consideration
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE
– GROUNDS FOR
INTERFERENCE – GENERAL PRINCIPLES – where sentence of life
imprisonment for grievous bodily harm
with intent not appropriate
Criminal Code 1899 (Qld), s 2, s 7, s 8, s 9, s 10A, s 317(e),
s 320, s 575, s 579(2)
Darkan v The Queen [2006] HCA 34
(2006) 227 CLR 373, applied
Knight v The
Queen [1992] HCA 56
(1992) 175 CLR 495, applied
Markby v The Queen [1978] HCA 29
(1978) 140
CLR 108, considered
R v Barlow (1997) 188 CLR 1, followed
R v
Brien & Paterson [1998] QCA 70
[1999] 1 Qd R 634, followed
R v Johnston [2002] QCA
74
CA No 269 of 2001, 15 March 2002, considered
R v Ritchie [1998] QCA
188
CA No 289 of 1997, 17 July 1998, considered
Reg v Smith (Wesley)
[1963] 1 WLR 1200
[1963] 3 All ER 597, distinguished
Rehavi v The
Queen [1998] QCA 157
(1998) 101 A Crim R 569, considered
Varley v The Queen
(1977) 51 ALJR 243, considered
Judgment (25 paragraphs)
[1]
The application for leave to appeal against sentence
[2]
[63] Because of the orders we propose, it is unnecessary to deal with the application for leave to appeal against the sentence of life imprisonment, the maximum sentence able to be imposed. In case the sentence is used as a comparable sentence for convictions under s 317 Criminal Code, we think it prudent to make the following brief observation. Despite the serious aspects of the case and Keenan's concerning antecedents, we are unpersuaded that this was an appropriate case in which to impose the maximum penalty of life imprisonment.
[3]
1. Appeal against conviction allowed and conviction set aside.
[4]
2. Verdicts of acquittal entered for the offence of malicious act with intent under s 317(e) Criminal Code and for the offence of grievous bodily harm simpliciter under s 320 Criminal Code.
[32][1998] QCA 188; CA No 289 of 1997, 17 July 1998, McPherson JA, Helman and Chesterman JJ agreeing, p 6.
[23]
[33] With respect, the use of the term "event" in discussing s 8 seems inconsistent with Barlow, authority for the proposition that "offence" is, per s 2, the act or omission rendering the person liable for punishment.
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - WHERE GROUNDS FOR INTERFERENCE WITH VERDICT - GENERALLY - where jury directions on inferences did not sufficiently deal with competing rational inferences favourable to the appellant - where the directions did not meet the requirements set out in Knight v The Queen[1992] HCA 56; (1992) 175 CLR 495
"... the reasoning process which must be employed if the onus of proof beyond reasonable doubt is to remain upon the prosecution is well recognized. As Dixon J said in Martin v. Osborne[1936] HCA 23; (1936) 55 CLR 367, at p 375: