R v Armstrong - [2001] QCA 559

SUPREME COURT OF QUEENSLAND

CITATION:

R v Armstrong [2001] QCA 559

PARTIES:

R
v
ARMSTRONG, Stuart William
(applicant/appellant)

FILE NO/S:

CA No 208 of 2001
DC No 264 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Appeal Against Conviction and Sentence

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

7 December 2001

DELIVERED AT:

Brisbane

HEARING DATE:

26 November 2001

JUDGES:

McMurdo P, Williams JA, Atkinson J
Judgment of the Court

ORDER:

1. Allow the appeal against conviction only to the extent of quashing the conviction on count 1 and directing a verdict of acquittal on that count.
2. Otherwise the appeal against conviction is dismissed.
3. Extend the time within which to apply for leave to appeal against sentence until 26 November 2001.
4. Grant the application for leave to appeal against sentence, allow the appeal and instead of the sentence of three years imprisonment imposed on count 2, substitute a sentence of two years imprisonment.
5. The sentence is otherwise confirmed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – appellant charged with rape, indecent dealing, deprivation of liberty and assault occasioning bodily harm – acquitted of rape and indecent dealing but convicted of deprivation of liberty and assault occasioning bodily harm - whether inconsistency in verdicts – where evidence provides a rational basis for the verdict of guilty of assault occasioning bodily harm

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION - where no direction given that in order to convict for deprivation of liberty, the prosecution must prove beyond a reasonable doubt that the appellant did not honestly and reasonably believe that the complainant was consenting to her stay in the room – where verdicts inconsistent – enter verdict of acquittal

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION - whether evidence of the complainant inconsistent – where judge gave appropriate direction concerning the complainants evidence – no miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - where sentence based on deprivation of liberty for the entire evening exacerbated the offence of assault occasioning bodily harm – where sentence manifestly excessive – sentence of two years imprisonment substituted.

Mackenzie v The Queen (1996) 190 CLR 348, considered

COUNSEL:

The appellant appeared on his own behalf
C Heaton for the respondent

SOLICITORS:

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

THE COURT: The appellant was charged in the District Court at Townsville with one count of deprivation of liberty, one count of assault occasioning bodily harm, one count of rape and one count of unlawful and indecent assault. He pleaded not guilty and was convicted after a three…

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 R v Armstrong

Details

AGLC: R v Armstrong [2001] QCA 559
Case: [2001] QCA 559
Decision Date: 7 December 2001

CaseChat Overview and Summary

The appellant, Armstrong, was convicted of deprivation of liberty and assault occasioning bodily harm by the Supreme Court of Victoria. He was acquitted of rape and indecent dealing. Armstrong appealed against his conviction and sentence, arguing that the verdicts were unreasonable or inconsistent, and that the sentence was manifestly excessive. The Court of Appeal was tasked with determining whether the verdicts were supported by the evidence, whether there was a misdirection by the trial judge, and whether the sentence was excessive.

The Court of Appeal found that the evidence supported the verdict of guilty for assault occasioning bodily harm but that the verdicts were inconsistent due to the absence of a direction regarding the honest and reasonable belief of the appellant. The trial judge had not directed the jury that to convict for deprivation of liberty, the prosecution must prove beyond a reasonable doubt that the appellant did not honestly and reasonably believe that the complainant was consenting to her stay in the room. This omission led to the Court of Appeal allowing the appeal against conviction only to the extent of quashing the conviction on count 1 and directing a verdict of acquittal on that count.

Additionally, the Court of Appeal found no miscarriage of justice in the judge's direction concerning the complainant's evidence, despite its inconsistency. The Court also considered the sentence, which was based on the deprivation of liberty for the entire evening, exacerbating the offence of assault occasioning bodily harm. The sentence was deemed manifestly excessive, and the Court of Appeal substituted a sentence of two years imprisonment for the three-year sentence imposed on count 2.

The Court of Appeal granted the application for leave to appeal against sentence, allowing the appeal, and substituting the sentence of two years imprisonment. The Court extended the time within which to apply for leave to appeal against sentence until 26 November 2001, dismissed the appeal against conviction in all other respects, and confirmed the sentence in all other respects.

Orders

Orders of the court

1. Allow the appeal against conviction only to the extent of quashing the conviction on count 1 and directing a verdict of acquittal on that count.

2. Otherwise the appeal against conviction is dismissed.

3. Extend the time within which to apply for leave to appeal against sentence until 26 November 2001.

4. Grant the application for leave to appeal against sentence, allow the appeal and instead of the sentence of three years imprisonment imposed on count 2, substitute a sentence of two years imprisonment.

5. The sentence is otherwise confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Armstrong [2001] QCA 559
PARTIES:	R v ARMSTRONG, Stuart William (applicant/appellant)
FILE NO/S:	CA No 208 of 2001 DC No 264 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Appeal Against Conviction and Sentence
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	7 December 2001
DELIVERED AT:	Brisbane
HEARING DATE:	26 November 2001
JUDGES:	McMurdo P, Williams JA, Atkinson J Judgment of the Court
ORDER:	1. Allow the appeal against conviction only to the extent of quashing the conviction on count 1 and directing a verdict of acquittal on that count. 2. Otherwise the appeal against conviction is dismissed. 3. Extend the time within which to apply for leave to appeal against sentence until 26 November 2001. 4. Grant the application for leave to appeal against sentence, allow the appeal and instead of the sentence of three years imprisonment imposed on count 2, substitute a sentence of two years imprisonment. 5. The sentence is otherwise confirmed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – appellant charged with rape, indecent dealing, deprivation of liberty and assault occasioning bodily harm – acquitted of rape and indecent dealing but convicted of deprivation of liberty and assault occasioning bodily harm - whether inconsistency in verdicts – where evidence provides a rational basis for the verdict of guilty of assault occasioning bodily harm CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION - where no direction given that in order to convict for deprivation of liberty, the prosecution must prove beyond a reasonable doubt that the appellant did not honestly and reasonably believe that the complainant was consenting to her stay in the room – where verdicts inconsistent – enter verdict of acquittal CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION - whether evidence of the complainant inconsistent – where judge gave appropriate direction concerning the complainants evidence – no miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - where sentence based on deprivation of liberty for the entire evening exacerbated the offence of assault occasioning bodily harm – where sentence manifestly excessive – sentence of two years imprisonment substituted. Mackenzie v The Queen (1996) 190 CLR 348, considered
COUNSEL:	The appellant appeared on his own behalf C Heaton for the respondent
SOLICITORS:	The appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent