1. The jury was directed, as a matter of law, in relation to count 2 on the 23rd of July 2018 to return a verdict of not guilty, and that occurred.
CATCHWORDS:
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – application for directed verdict – whether defect in the evidence was present – absence of evidence of element of the offence – application granted
STATUTES – Interpretation – word and phrases – s 315A(1)(a) and (b) Criminal Code (Qld) - meaning of the words “choke”, “strangle” and “suffocate” – whether the offence requires the victim to have stopped breathing
M Sheppard for the Crown H Walters for the defendant
SOLICITORS:
Office of the Director of Public Prosecutions (Queensland) for the Crown Strategic Lawyers for the Defendant
AJB was charged with two counts contained within an indictment dated the 8th of March 2019. Count 1 was a count of assault occasioning bodily harm (domestic violence offence) and…
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.
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Details
AGLC
R v AJB [2019] QDC 169
Case
[2019] QDC 169
Decision Date
CaseChat Overview and Summary
In the case of R v AJB, the defendant was charged with various offences, including an assault occasioning bodily harm contrary to s 339(1) and (2)(a) of the Criminal Code (Qld). The dispute centred on the sufficiency of the evidence presented to establish the elements of the charged offences. The case was heard in the District Court of Queensland.
The court was required to decide whether there was a defect in the prosecution's evidence that rendered it insufficient to establish the elements of the offences charged. Specifically, the court needed to determine whether the prosecution had failed to provide evidence of a critical element of the offence of assault occasioning bodily harm, namely, whether the victim had stopped breathing. The court also needed to interpret the meaning of the words "choke", "strangle", and "suffocate" as they appeared in s 315A(1)(a) and (b) of the Criminal Code (Qld).
The court held that the prosecution had failed to provide evidence that the victim had stopped breathing, which was a necessary element of the offence of assault occasioning bodily harm. The court found that the words "choke", "strangle", and "suffocate" required the victim to have stopped breathing, and that this was not established by the evidence. The court also held that the absence of evidence of this element was a defect in the prosecution's case that could not be remedied by the jury. Accordingly, the court directed the jury to return a verdict of not guilty on count 2, and this direction was carried out.
Orders
Orders of the court
1. The jury was directed, as a matter of law, in relation to count 2 on the 23rd of July 2018 to return a verdict of not guilty, and that occurred.