R v Anderson

[2004] QCA 287

SUPREME COURT OF QUEENSLAND

CITATION:

R v Anderson [2004] QCA 287

PARTIES:

R
v
ANDERSON, Kelvin John
(appellant)

FILE NO/S:

CA No 64 of 2004
SC No 40 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Rockhampton

DELIVERED ON:

6 August 2004

DELIVERED AT:

Brisbane

HEARING DATE:

23 July 2004

JUDGES:

Davies JA and Mackenzie and Mullins JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Allow the appeal against conviction in respect of count 4

2.   Quash the conviction for attempted murder and substitute a verdict of guilty of doing grievous bodily harm to Daniel Dunnett with intent to do grievous bodily harm

3.   Impose a sentence of 11 years 7 months imprisonment with one day spent in custody to be taken as time already served

CATCHWORDS:

APPEAL AND NEW TRIAL – NEW TRIAL  – IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – INCONSISTENCY BETWEEN FINDINGS OF JURY – INCONSISTENCY BETWEEN DIFFERENT FINDINGS – GENERALLY – whether a differentiation between verdict of acquittal of attempted murder in the case of one victim and verdict of guilty of attempted murder in relation to the other could be supported – where appellant acquitted of entering premises with intent to commit an indictable offence – where attacks violent – where intent accompanying each attack by inference only – where no detailed evidence of events – where no admissions or statements as to intent by the appellant

APPEAL AND NEW TRIAL – NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – IMMATERIALITY OF MISDIRECTION OR NON-DIRECTION – whether trial judge gave appropriate directions on the medical and factual issues

Gilbert v The Queen (2000) 201 CLR 414, applied
MFA v The Queen (2002) 213 CLR 606, applied

COUNSEL:

The appellant/applicant appeared on his own behalf
B G Campbell for the respondent

SOLICITORS:

The appellant/applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

1.     DAVIES JA:I agree with the reasons for judgment of Mackenzie J and with the orders he proposes.

1. MACKENZIE J:  The appellant was tried on five counts arising from an incident on 15 September 2001 in which his estranged partner Ms Dunnett and her son Daniel Dunnett received serious injuries.  The counts were as follows:

1.          Aggravated burglary of Ms Dunnett’s dwelling.

2.          Attempted murder of her.

3.(Alternatively) doing grievous bodily harm to her with intent to do grievous bodily harm.   

4.Attempted murder of Daniel Dunnett, and

5.(Alternatively) doing grievous bodily harm to him with intent to do grievous bodily harm.

1. The jury acquitted the appellant on counts 1 and 2 but convicted him of counts 3 and 4.  Although the endorsement on the indictment records a verdict of not guilty of count 5, the appeal record shows that, correctly, the learned trial judge discharged the jury without taking a verdict on that count which was an alternative to…