R v Bargenquast, Davis and Holmes - [2005] QCA 476

SUPREME COURT OF QUEENSLAND

CITATION:

R v Bargenquast, Davis & Holmes [2005] QCA 476

PARTIES:

R
v
BARGENQUAST, Adam Troy
(applicant)

R
v
DAVIS, Wade Anthony
(applicant/appellant)

R
v
HOLMES, Mark William
(applicant)

FILE NO/S:

CA No 135 of 2005
CA No 153 of 2005
CA No 158 of 2005
SC No 369 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application
Appeal against Conviction and Sentence

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

16 December 2005

DELIVERED AT:

Brisbane

HEARING DATE:

23 November 2005

JUDGES:

de Jersey CJ, McPherson JA and Mackenzie J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Applications for leave to appeal against sentence refused in each case
2. Appeal against conviction in CA No 153 of 2005 dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – where each of the applicants convicted after trial of six offences involving violence including manslaughter – where offences committed during a sustained pursuit of the deceased and after his capture – where applicants aged between 22 and 44 at time of offences – where trial judge could not differentiate as to the level of involvement in the offences apart from one applicant who was identified as the leader – where two applicants complained of lack of parity between sentences of co-offenders – where one applicant claimed he played a lesser part in the offences, had good work history, supportive family, good references and minor criminal history and that these factors should have been reflected in his sentence – whether sentences manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – IN GENERAL – where appellant convicted after trial of six offences involving violence including manslaughter – where appellant appealed against three counts only – where appeal against conviction on one count was argued on the basis that there was insufficient satisfactory evidence upon which a jury could conclude that the appellant was present at the scene at the time of the offence – where appeal against conviction on the remaining two counts was argued on the basis that the quality of the evidence was such that the convictions were unsafe and unsatisfactory – whether jury’s verdicts were unsafe and unsatisfactory

R v Duong& Others [2002] QCA 151; CA Nos 336, 338, 343 and 344 of 2001, 30 April 2002, considered

COUNSEL:

A J Rafter SC for the applicant in CA No 135 of 2005
A Kimmins for the applicant/appellant in CA No 153 of 2005
D J Walsh for the applicant in CA No 158 of 2005
M R Byrne for the respondent

SOLICITORS:

Bernard Bradley & Associates for the applicant in CA No 135 of 2005
John McDonald Solicitor for the applicant/appellant in…

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.

Keep reading for free

Create a free CaseChat account to read R v Bargenquast, Davis and Holmes and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2005] QCA 476
Decision Date: 16 December 2005

CaseChat Overview and Summary

The respondents, Bargenquast, Davis, and Holmes, were convicted in the Supreme Court of Western Australia for their involvement in six violent offences, including manslaughter, committed during a sustained pursuit and after the capture of the deceased. They sought leave to appeal against their sentences, arguing that the sentences were manifestly excessive, and one of the respondents also appealed against his convictions on three counts. The key legal issues included whether the sentences were manifestly excessive and whether the jury's verdicts were unsafe and unsatisfactory.

The High Court considered whether the sentences were manifestly excessive. It noted that while the trial judge could not differentiate between the respondents' levels of involvement, one respondent was identified as the leader. The court held that the trial judge had exercised his discretion appropriately in imposing the sentences and found no error in the sentences being manifestly excessive. Regarding the appeal against conviction, the court examined whether the evidence was insufficient to support the convictions. It found that the evidence was sufficient to support the convictions, and the jury's verdicts were safe and satisfactory.

The High Court refused the applications for leave to appeal against sentence and dismissed the appeal against conviction. The court held that the sentences were not manifestly excessive and that the jury's verdicts were safe and satisfactory. Consequently, the applications for leave to appeal against sentence were refused in each case, and the appeal against conviction in CA No 153 of 2005 was dismissed.

Orders

Orders of the court

1. Applications for leave to appeal against sentence refused in each case

2. Appeal against conviction in CA No 153 of 2005 dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Bargenquast, Davis & Holmes [2005] QCA 476
PARTIES:	R v BARGENQUAST, Adam Troy (applicant) R v DAVIS, Wade Anthony (applicant/appellant) R v HOLMES, Mark William (applicant)
FILE NO/S:	CA No 135 of 2005 CA No 153 of 2005 CA No 158 of 2005 SC No 369 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application Appeal against Conviction and Sentence
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	16 December 2005
DELIVERED AT:	Brisbane
HEARING DATE:	23 November 2005
JUDGES:	de Jersey CJ, McPherson JA and Mackenzie J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Applications for leave to appeal against sentence refused in each case 2. Appeal against conviction in CA No 153 of 2005 dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – where each of the applicants convicted after trial of six offences involving violence including manslaughter – where offences committed during a sustained pursuit of the deceased and after his capture – where applicants aged between 22 and 44 at time of offences – where trial judge could not differentiate as to the level of involvement in the offences apart from one applicant who was identified as the leader – where two applicants complained of lack of parity between sentences of co-offenders – where one applicant claimed he played a lesser part in the offences, had good work history, supportive family, good references and minor criminal history and that these factors should have been reflected in his sentence – whether sentences manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – IN GENERAL – where appellant convicted after trial of six offences involving violence including manslaughter – where appellant appealed against three counts only – where appeal against conviction on one count was argued on the basis that there was insufficient satisfactory evidence upon which a jury could conclude that the appellant was present at the scene at the time of the offence – where appeal against conviction on the remaining two counts was argued on the basis that the quality of the evidence was such that the convictions were unsafe and unsatisfactory – whether jury’s verdicts were unsafe and unsatisfactory R v Duong& Others [2002] QCA 151; CA Nos 336, 338, 343 and 344 of 2001, 30 April 2002, considered
COUNSEL:	A J Rafter SC for the applicant in CA No 135 of 2005 A Kimmins for the applicant/appellant in CA No 153 of 2005 D J Walsh for the applicant in CA No 158 of 2005 M R Byrne for the respondent
SOLICITORS:	Bernard Bradley & Associates for the applicant in CA No 135 of 2005 John McDonald Solicitor for the applicant/appellant in…