R v Briggs - [2013] QCA 110

SUPREME COURT OF QUEENSLAND

CITATION:

R v Briggs [2013] QCA 110

PARTIES:

R
v
BRIGGS, Gregory Anthony
(appellant/applicant)

FILE NO/S:

CA No 239 of 2012
DC No 416 of 2012

DIVISION:

Court of Appeal

PROCEEDINGS:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

14 May 2013

DELIVERED AT:

Brisbane

HEARING DATE:

11 April 2013

JUDGES:

Holmes and Gotterson JJA and Daubney 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 THE EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of two counts of unlawful stalking in respect of two complainants – where the unlawful stalking consisted of two episodes of physically spying on his ex-wife and the making of calls, usually silent, and sending of offensive texts to her and one of her co-workers over some two and a half years – where the appellant appeals against his convictions on the ground that the verdicts were unreasonable – where the spying incidents were not disputed and there was a large amount of circumstantial evidence pointing to the appellant as the source of the calls and text messages – where the appellant contended that a number of factors pointed away from him as the offender and that there were other possible culprits, with the result that the verdicts were unreasonable – whether it was open to the jury to exclude the possibility that there was a third party responsible for the calls and texts – whether the verdicts were unreasonable or insupportable having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant was convicted of two counts of unlawful stalking in respect of two complainants – where at trial, agreed admissions contained an error putting the date of the appellant's departure from Australia a day earlier than was correct – where, in his closing address, defence counsel made an argument based on the appellant's supposed absence from the country – where upon realising the error, defence counsel asked for the jury to be discharged – where the learned trial judge refused to discharge the jury, and instead allowed the prosecution to correct the error – where defence counsel was permitted to address the jury further – whether the mistaken submission had such a damaging effect on the balance of the defence address that the failure to discharge the jury occasioned a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – OTHER MATTERS – where the appellant was convicted of two counts of unlawful stalking in respect of two complainants – where the appellant was sentenced to 15 months imprisonment in respect of one count…

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 Briggs

Details

AGLC: R v Briggs [2013] QCA 110
Case: [2013] QCA 110
Decision Date: 14 May 2013

CaseChat Overview and Summary

The appeal by Briggs against his conviction for two counts of unlawful stalking was heard in the higher court. Briggs was found guilty of engaging in two incidents of spying on his ex-wife and making numerous silent calls and sending offensive texts to her and a co-worker over a period of two and a half years. The appellant argued that the jury's verdict was unreasonable as there were other potential culprits and factors that pointed away from him as the offender. The court was tasked with determining whether it was open to the jury to exclude the possibility that a third party was responsible for the calls and texts, and whether the verdicts were unreasonable or insupportable in light of the evidence.

The court found that it was open to the jury to conclude that Briggs was the source of the calls and texts, as there was a significant amount of circumstantial evidence pointing to him. The court held that it was not necessary for the jury to consider the possibility of a third party being responsible for the offences. The appellant's contention that other factors pointed away from him as the offender did not undermine the jury's conclusion that he was responsible. The court held that the verdicts were not unreasonable or insupportable, and the appeal against conviction was dismissed.

In addition to the appeal against conviction, Briggs also sought leave to appeal against his sentence. The appellant argued that the sentences imposed were manifestly excessive, given the lack of aggravating circumstances and the imposition of a restraining order. The trial judge had sentenced Briggs to 15 months imprisonment for one count and nine months for the other, both wholly suspended with an operational period of four years. The court held that the sentences were not manifestly excessive, taking into account the mitigating circumstances, the psychological harm caused to the victims, and the nature of the offending. The application for leave to appeal against sentence was refused.

The final orders of the court were that 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 Briggs [2013] QCA 110
PARTIES:	R v BRIGGS, Gregory Anthony (appellant/applicant)
FILE NO/S:	CA No 239 of 2012 DC No 416 of 2012
DIVISION:	Court of Appeal
PROCEEDINGS:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	14 May 2013
DELIVERED AT:	Brisbane
HEARING DATE:	11 April 2013
JUDGES:	Holmes and Gotterson JJA and Daubney 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 THE EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of two counts of unlawful stalking in respect of two complainants – where the unlawful stalking consisted of two episodes of physically spying on his ex-wife and the making of calls, usually silent, and sending of offensive texts to her and one of her co-workers over some two and a half years – where the appellant appeals against his convictions on the ground that the verdicts were unreasonable – where the spying incidents were not disputed and there was a large amount of circumstantial evidence pointing to the appellant as the source of the calls and text messages – where the appellant contended that a number of factors pointed away from him as the offender and that there were other possible culprits, with the result that the verdicts were unreasonable – whether it was open to the jury to exclude the possibility that there was a third party responsible for the calls and texts – whether the verdicts were unreasonable or insupportable having regard to the evidence CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant was convicted of two counts of unlawful stalking in respect of two complainants – where at trial, agreed admissions contained an error putting the date of the appellant's departure from Australia a day earlier than was correct – where, in his closing address, defence counsel made an argument based on the appellant's supposed absence from the country – where upon realising the error, defence counsel asked for the jury to be discharged – where the learned trial judge refused to discharge the jury, and instead allowed the prosecution to correct the error – where defence counsel was permitted to address the jury further – whether the mistaken submission had such a damaging effect on the balance of the defence address that the failure to discharge the jury occasioned a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – OTHER MATTERS – where the appellant was convicted of two counts of unlawful stalking in respect of two complainants – where the appellant was sentenced to 15 months imprisonment in respect of one count…