R v Bourke - [2003] QCA 113

SUPREME COURT OF QUEENSLAND

CITATION:

R v Bourke [2003] QCA 113

PARTIES:

R
v
BOURKE, Wayne Charles
(appellant)

FILE NO/S:

CA No 349 of 2002
DC No 2124 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

21 March 2003

DELIVERED AT:

Brisbane

HEARING DATE:

6 March 2003

JUDGES:

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

ORDERS:

1.The appeal against conviction allowed only to the extent of substituting a verdict of guilty and recording a conviction for the offence of unlawfully possessing a motor vehicle for that of receiving stolen property, namely a tri-axle trailer, as found by the jury
2.Grant leave to appeal against sentence and allow the appeal only to the following extent:

i. Set aside the sentence of 18 months imprisonment for receiving and impose a sentence of 12 months imprisonment to be served concurrently for the offence of unlawful possession of a motor vehicle;

ii. Order that the sentences be suspended after 12 months with an operational period of 4 years

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – CONSIDERATION OF SUMMING UP AS A WHOLE – where trial judge gave jury written directions in the course of summing up – where trial judge failed to direct jury that the document was not to be used in substitution for oral directions – whether the jury were left under a misapprehension that the document was in addition to or in lieu of oral directions

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – PRESENTATION OF DEFENCE CASE AND CROWN CASE AND REVIEW OF EVIDENCE – GENERALLY – where trial judge speculated on reasons for aspects of appellant’s conduct – where appellant submits that these observations were not supported by the evidence – whether these comments would have unduly influenced the jury’s findings of fact

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – POWER TO AFFIRM OR SUBSTITUTE SENTENCE OR SUBSTITUTE VERDICT OF GUILTY OF OTHER OFFENCE – PARTICULAR CASES – where appellant convicted of receiving – where error in summing up as to element of knowledge – whether conviction for receiving should stand – whether a verdict of guilty of unlawfully possessing a motor vehicle should be substituted

CRIMINAL LAW – JURISDICTION PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – PARITY – GENERALLY – where appellant’s brother convicted of receiving – where accepted that the sentence imposed on appellant should be significantly less than that imposed on his brother – where head sentence of…

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 Bourke

Details

AGLC: R v Bourke [2003] QCA 113
Case: [2003] QCA 113
Decision Date: 21 March 2003

CaseChat Overview and Summary

The appellant was convicted of receiving stolen property and was sentenced to 18 months imprisonment. The appellant appealed against both conviction and sentence. The main issues before the court were whether the trial judge's summing up contained any errors, whether these errors influenced the jury's findings, and whether the sentence imposed was appropriate. Specifically, the court needed to determine if the trial judge's written directions given to the jury during the summing up were misdirections, and if the trial judge's speculation on the reasons for the appellant's conduct unduly influenced the jury's findings.

The court found that the trial judge's written directions to the jury did not substitute for the oral directions, but rather complemented them. The court considered the summing up as a whole and concluded that any potential misapprehension by the jury did not materially affect the trial's fairness. Additionally, the court held that the trial judge's speculations on the appellant's conduct did not unduly influence the jury's findings as they were not unsupported by the evidence. Regarding the sentence, the court found that the appellant's sentence should be less than that of his brother, who was convicted of the same offence. The court held that the sentence should be amended to achieve parity with the brother's sentence.

The appeal against conviction was allowed only to the extent of substituting a verdict of guilty and recording a conviction for the offence of unlawfully possessing a motor vehicle for that of receiving stolen property, namely a tri-axle trailer, as found by the jury. The appeal against sentence was allowed to the extent of setting aside the sentence of 18 months imprisonment for receiving and imposing a sentence of 12 months imprisonment to be served concurrently for the offence of unlawful possession of a motor vehicle, and ordering that the sentences be suspended after 12 months with an operational period of four years.

Orders

Orders of the court

1.The appeal against conviction allowed only to the extent of substituting a verdict of guilty and recording a conviction for the offence of unlawfully possessing a motor vehicle for that of receiving stolen property, namely a tri-axle trailer, as found by the jury

2.Grant leave to appeal against sentence and allow the appeal only to the following extent:

i. Set aside the sentence of 18 months imprisonment for receiving and impose a sentence of 12 months imprisonment to be served concurrently for the offence of unlawful possession of a motor vehicle;

ii. Order that the sentences be suspended after 12 months with an operational period of 4 years

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 Bourke [2003] QCA 113
PARTIES:	R v BOURKE, Wayne Charles (appellant)
FILE NO/S:	CA No 349 of 2002 DC No 2124 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	21 March 2003
DELIVERED AT:	Brisbane
HEARING DATE:	6 March 2003
JUDGES:	McMurdo P, Williams JA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1.The appeal against conviction allowed only to the extent of substituting a verdict of guilty and recording a conviction for the offence of unlawfully possessing a motor vehicle for that of receiving stolen property, namely a tri-axle trailer, as found by the jury 2.Grant leave to appeal against sentence and allow the appeal only to the following extent: i. Set aside the sentence of 18 months imprisonment for receiving and impose a sentence of 12 months imprisonment to be served concurrently for the offence of unlawful possession of a motor vehicle; ii. Order that the sentences be suspended after 12 months with an operational period of 4 years
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – CONSIDERATION OF SUMMING UP AS A WHOLE – where trial judge gave jury written directions in the course of summing up – where trial judge failed to direct jury that the document was not to be used in substitution for oral directions – whether the jury were left under a misapprehension that the document was in addition to or in lieu of oral directions CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – PRESENTATION OF DEFENCE CASE AND CROWN CASE AND REVIEW OF EVIDENCE – GENERALLY – where trial judge speculated on reasons for aspects of appellant’s conduct – where appellant submits that these observations were not supported by the evidence – whether these comments would have unduly influenced the jury’s findings of fact CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – POWER TO AFFIRM OR SUBSTITUTE SENTENCE OR SUBSTITUTE VERDICT OF GUILTY OF OTHER OFFENCE – PARTICULAR CASES – where appellant convicted of receiving – where error in summing up as to element of knowledge – whether conviction for receiving should stand – whether a verdict of guilty of unlawfully possessing a motor vehicle should be substituted CRIMINAL LAW – JURISDICTION PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – PARITY – GENERALLY – where appellant’s brother convicted of receiving – where accepted that the sentence imposed on appellant should be significantly less than that imposed on his brother – where head sentence of…