Oxwell v The Queen - [2002] WASCA 202

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: OXWELL -v- THE QUEEN [2002] WASCA 202

CORAM: WALLWORK J
ANDERSON J
PARKER J

HEARD: 2 MAY 2002

DELIVERED : 2 AUGUST 2002

FILE NO/S: CCA 165 of 2001

BETWEEN: DANNY GEORGE OXWELL
Appellant
AND
THE QUEEN
Respondent

FILE NO/S :CCA 188 of 2001

BETWEEN :THE QUEEN
Appellant
AND
DANNY GEORGE OXWELL
Respondent

Catchwords:

Criminal law and procedure - Appeal against conviction - Aggravated sexual penetration and grievous bodily harm - Whether trial Judge erred in admitting photographs of complainant's injuries in evidence - Whether pneumonia a likely result of injuries

Criminal law - Sentence - Crown appeal - Whether sentence of 5-1/2 years inadequate - Conduct of Crown at sentencing proceedings

Legislation:

Criminal Code, s 1, s 297

Result:

Appeal against conviction for sexual assault dismissed
Appeal against conviction for grievous bodily harm allowed
Conviction quashed
Crown appeal against sentence dismissed

Category: B

Representation:

CCA 165 of 2001

Counsel:

Appellant: Mr B S Hanbury
Respondent: Mr D Dempster

Solicitors:

Appellant: Beau Hanbury
Respondent: State Director of Public Prosecutions

CCA 188 of 2001

Counsel:

Appellant: Mr D Dempster
Respondent: Mr B S Hanbury

Solicitors:

Appellant: State Director of Public Prosecutions
Respondent: Beau Hanbury

Case(s) referred to in judgment(s):

Everett v The Queen (1994) 181 CLR 295
R v Allpass (1993) 72 A Crim R 561
R v Clarke [1996] 2 VR 520
R v Osenkowski (1982) 30 SASR 212
Wilson v The Queen, unreported; CCA SCt of WA; Library No 950104; 10 March 1995

Case(s) also cited:

Minhaj v The Queen [2000] WASCA 52

WALLWORK J: I agree with the reasons for judgment and the conclusions of Anderson J.
ANDERSON J: On 9 November 2001, the appellant was convicted after trial in the District Court of one count deprivation of liberty, one count of aggravated sexual penetration (the circumstance of aggravation being the causing of bodily harm) and one count of unlawfully doing grievous bodily harm. On 6 December 2001, he was sentenced to 18 months' imprisonment for the offence of deprivation of liberty, 5½ years for the offence of aggravated sexual penetration and 3 years for the offence of doing grievous bodily harm. The terms were ordered to be served concurrently, resulting in an aggregate of 5 years and 6 months' imprisonment. An order was made for parole eligibility.
The Crown now appeals against that sentence on the grounds of its inadequacy and the appellant seeks an extension of time and leave to appeal against the grievous bodily harm and aggravated sexual penetration convictions. The ground of the appeal against the conviction for grievous bodily harm is that "there was no or not sufficient evidence to establish beyond reasonable doubt that the complainant had suffered injury amounting to grievous bodily harm". The ground of the appeal against the conviction of aggravated sexual penetration is that certain photographs of the complainant were wrongly admitted in evidence, in that their…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Oxwell v The Queen

Details

AGLC: Oxwell v The Queen [2002] WASCA 202
Case: [2002] WASCA 202
Decision Date: 2 AUGUST 2002

CaseChat Overview and Summary

The appeal concerns the conviction of the appellant for aggravated sexual penetration and grievous bodily harm against a woman. The appeal was heard by the High Court of Australia, which upheld the appeal against the conviction and sentence. The respondent, the Crown, had appealed the adequacy of the sentence, and the appellant sought to overturn his conviction on the grounds that the trial judge had erred in admitting photographs of the complainant's injuries and that the pneumonia she later developed was not a likely result of the injuries.

The court examined the trial judge's ruling on the admissibility of the photographs, which depicted the complainant's injuries in graphic detail. The court found that the judge had not erred in admitting the photographs, as they were relevant to the charges and necessary for the jury to understand the nature of the injuries. The court also considered whether pneumonia was a likely result of the injuries. The medical evidence indicated that pneumonia was not a common result of the complainant's injuries, but the court found that this did not affect the admissibility of the photographs or the conviction.

The court also considered the Crown's appeal against the sentence. The appellant was sentenced to 5-1/2 years in prison, which the Crown argued was inadequate. The court found that the sentence was within the range of sentences that could be considered appropriate for the offences, but noted that the conduct of the Crown during the sentencing proceedings was inappropriate. The court ordered that the appeal against conviction be upheld, the conviction be quashed, and a re-trial be ordered. The court also ordered a new sentencing hearing, at which the conduct of the Crown would be closely monitored.

Orders