R v Bishop - [2010] QCA 375

SUPREME COURT OF QUEENSLAND

CITATION:

R v Bishop [2010] QCA 375

PARTIES:

R
v
BISHOP, Jacqueline Kay
(appellant)

FILE NO/S:

CA No 61 of 2010
CA No 101 of 2010
DC No 2926 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

23 December 2010

DELIVERED AT:

Brisbane

HEARING DATE:

1 October 2010

JUDGES:

Margaret McMurdo P, Chesterman JA and Cullinane J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. The appeal against conviction is dismissed.

2. The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – appellant jointly charged with co-offenders Cox, McDonnell and Weldon of burglary with several circumstances of aggravation (count 1), common assault (count 2) and doing grievous bodily harm (count 3) – appellant pleaded not guilty to all counts – appellant found not guilty of circumstances of aggravation that burglary was by means of break and in company, not guilty of count 2, guilty count of 3 – whether jury entitled to reject exculpatory evidence of appellant and accept contrary evidence beyond reasonable doubt – whether it was open to the jury to be satisfied beyond reasonable doubt that appellant was guilty of burglary with circumstances of aggravation – whether verdicts were unreasonable or insupportable

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – GENERAL PRINCIPLES – appellant gave interview to police in which she gave a false alibi – appellant gave evidence at trial that she was induced to take part in interview by promises that charges against her were dropped – police officer conducting interview denied making promises – appellant stated in interview that took she part voluntarily – whether judge correctly applied s 10 Criminal Law Amendment Act 1894 (Qld) – whether record of interview was admissible

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – whether not guilty on count 2 and some circumstances of aggravation on count 1 are inconsistent with guilty verdicts – whether the diverse verdicts can stand together logically

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – trial judge failed to direct jury that appellant not criminally responsible of property offence if acts were exercise of honest claim of right under s 22 Criminal Code 1899 (Qld) – whether s 22 applies to burglary – whether evidence raised honest claim of right with respect to property – whether trial judge should have directed the jury on s 22 defence

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – whether trial judge should have directed the jury that appellant is not criminally responsible for offences done in sudden or extraordinary…

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 Bishop

Details

AGLC: R v Bishop [2010] QCA 375
Case: [2010] QCA 375
Decision Date: 23 December 2010

CaseChat Overview and Summary

The appeal in R v Bishop was brought by the appellant who had been found guilty of one count of doing grievous bodily harm but not guilty of several other charges, including the aggravated burglary charge. The appellant was jointly charged with co-offenders Cox, McDonnell and Weldon. The court was tasked with determining whether the verdicts were unreasonable or insupportable, whether there were any misdirections or non-directions by the trial judge, and whether the appellant's sentence was manifestly excessive compared to her co-offenders.

The appellant argued that the jury was not entitled to reject her exculpatory evidence and accept contrary evidence beyond reasonable doubt. The court examined whether the judge correctly applied section 10 of the Criminal Law Amendment Act 1894 (Qld) in relation to the admissibility of the interview. The court also considered whether the verdicts on counts 1 and 2 were inconsistent, whether the trial judge should have directed the jury on section 22 and section 25 of the Criminal Code 1899 (Qld), and whether the judge's conduct or the defence counsel's conduct prejudiced the appellant or caused a miscarriage of justice.

The court found that the jury was entitled to reject the appellant's evidence and accept the contrary evidence beyond reasonable doubt. The court held that the judge correctly applied the relevant legislation and that the verdicts, though diverse, were not inconsistent and could stand together logically. The court found no misdirection or non-direction by the trial judge and that the judge's conduct and defence counsel's conduct did not prejudice the appellant or cause a miscarriage of justice. The court also found that the appellant's sentence was not manifestly excessive compared to her co-offenders.

The appeal against conviction was dismissed, and the application for leave to appeal against sentence was refused.

Orders

Orders of the court

1. The appeal against conviction is dismissed.

2. The application for leave to appeal against sentence is refused.

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 Bishop [2010] QCA 375
PARTIES:	R v BISHOP, Jacqueline Kay (appellant)
FILE NO/S:	CA No 61 of 2010 CA No 101 of 2010 DC No 2926 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	23 December 2010
DELIVERED AT:	Brisbane
HEARING DATE:	1 October 2010
JUDGES:	Margaret McMurdo P, Chesterman JA and Cullinane J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The appeal against conviction is dismissed. 2. The application for leave to appeal against sentence is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – appellant jointly charged with co-offenders Cox, McDonnell and Weldon of burglary with several circumstances of aggravation (count 1), common assault (count 2) and doing grievous bodily harm (count 3) – appellant pleaded not guilty to all counts – appellant found not guilty of circumstances of aggravation that burglary was by means of break and in company, not guilty of count 2, guilty count of 3 – whether jury entitled to reject exculpatory evidence of appellant and accept contrary evidence beyond reasonable doubt – whether it was open to the jury to be satisfied beyond reasonable doubt that appellant was guilty of burglary with circumstances of aggravation – whether verdicts were unreasonable or insupportable CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – GENERAL PRINCIPLES – appellant gave interview to police in which she gave a false alibi – appellant gave evidence at trial that she was induced to take part in interview by promises that charges against her were dropped – police officer conducting interview denied making promises – appellant stated in interview that took she part voluntarily – whether judge correctly applied s 10 Criminal Law Amendment Act 1894 (Qld) – whether record of interview was admissible CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – whether not guilty on count 2 and some circumstances of aggravation on count 1 are inconsistent with guilty verdicts – whether the diverse verdicts can stand together logically CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – trial judge failed to direct jury that appellant not criminally responsible of property offence if acts were exercise of honest claim of right under s 22 Criminal Code 1899 (Qld) – whether s 22 applies to burglary – whether evidence raised honest claim of right with respect to property – whether trial judge should have directed the jury on s 22 defence CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – whether trial judge should have directed the jury that appellant is not criminally responsible for offences done in sudden or extraordinary…