R v Butterworth - [2017] QCA 47

SUPREME COURT OF QUEENSLAND

CITATION:

R v Butterworth [2017] QCA 47

PARTIES:

R
v
BUTTERWORTH, David Matthew
(appellant)

FILE NO/S:

CA No 119 of 2016
DC No 78 of 2015
DC No 52 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Hervey Bay – Date of Conviction: 21 April 2016

DELIVERED ON:

23 March 2017

DELIVERED AT:

Brisbane

HEARING DATE:

2 November 2016

JUDGES:

Margaret McMurdo P and Morrison JA and McMeekin J
Separate reasons for judgment of each member of the Court, Morrison JA and McMeekin J concurring as to the order made, Margaret McMurdo P dissenting

ORDERS:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – FAILURE TO EXERCISE DISCRETION – where the appellant was convicted by jury of two counts of doing a malicious act with intent under s 317 Criminal Code 1899 (Qld) – where the appellant contends that the trial judge erred in refusing him leave to cross-examine the complainant about his criminal history – where the appellant contends that the trial judge failed to exercise the discretions given by s 5(3)(b) Criminal Law (Rehabilitation of Offenders) Act and s 15A Evidence Act 1977 (Qld) – where the respondent Crown concedes that the trial judge incorrectly construed those provisions but argues that no substantial miscarriage of justice has actually occurred – where identification of the attacker and the complainant’s credibility were the central issues at trial – whether the trial judge erred in failing to exercise the discretion – whether the appeal ought to be dismissed regardless

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – OTHER CASES – where the appellant was convicted by jury of two counts of doing a malicious act with intent under s 317 Criminal Code 1899 (Qld) – where identification of the attacker was a central issue at trial – where the defence case was that someone other than the appellant attacked the complainant and that the appellant’s testimony was false – where the appellant contends that the trial judge erred in refusing to allow him to lead evidence of the violent criminal history of another suspect in the police investigation – whether the trial judge erred in refusing to admit that evidence

Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld), s 5(2), s 5(3)(b)
Evidence Act 1977 (Qld), s 15A, s 16

Hally v Starkey & Anor, Ex parte Hally [1962] Qd R 474, cited
R v Glattback[2007] QCA 204, cited
R v Millar [2000] 1 Qd R 437; [1998] QCA 276, cited
Warry v P B Pty Ltd[1999] QCA 154, distinguished

COUNSEL:

J McInnes for the appellant
D Balic for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

MARGARET McMURDO P: The appellant, David Butterworth, was convicted after a four day trial of unlawfully wounding…

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 Butterworth

Details

AGLC: R v Butterworth [2017] QCA 47
Case: [2017] QCA 47
Decision Date: 23 March 2017

CaseChat Overview and Summary

The appeal against conviction and sentence by the appellant, who was convicted by a jury of two counts of doing a malicious act with intent under section 317 of the Criminal Code 1899 (Qld), was heard in the Court of Appeal. The appellant contended that the trial judge erred in refusing to allow him to cross-examine the complainant about his criminal history and in not exercising the discretions provided by section 5(3)(b) of the Criminal Law (Rehabilitation of Offenders) Act and section 15A of the Evidence Act 1977 (Qld). The Crown conceded that the trial judge had incorrectly interpreted these provisions but argued that no substantial miscarriage of justice had occurred, given that the identification of the attacker and the complainant's credibility were central issues at trial. The court needed to determine whether the trial judge's failure to exercise the discretion constituted an error and whether the appeal should be dismissed.

The court considered the impact of the trial judge's error on the trial's fairness and whether it resulted in a substantial miscarriage of justice. The court noted that the trial judge had not exercised the discretion to allow the appellant to cross-examine the complainant about his criminal history, which could have impacted the jury's assessment of the complainant's credibility. However, the court also noted that the identification of the attacker and the complainant's credibility were the central issues at trial. The court found that, while the trial judge's error was significant, it did not result in a substantial miscarriage of justice, as the evidence against the appellant was strong, and the identification of the attacker was not in doubt. The court held that the appeal should be dismissed.

The court dismissed the appeal, finding that the trial judge's failure to exercise the discretion did not result in a substantial miscarriage of justice. The court found that the evidence against the appellant was strong, and the identification of the attacker was not in doubt. The court concluded that the trial judge's error did not impact the fairness of the trial or the outcome of the case. The appeal was dismissed, and the conviction and sentence were upheld.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

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 Butterworth [2017] QCA 47
PARTIES:	R v BUTTERWORTH, David Matthew (appellant)
FILE NO/S:	CA No 119 of 2016 DC No 78 of 2015 DC No 52 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Hervey Bay – Date of Conviction: 21 April 2016
DELIVERED ON:	23 March 2017
DELIVERED AT:	Brisbane
HEARING DATE:	2 November 2016
JUDGES:	Margaret McMurdo P and Morrison JA and McMeekin J Separate reasons for judgment of each member of the Court, Morrison JA and McMeekin J concurring as to the order made, Margaret McMurdo P dissenting
ORDERS:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – FAILURE TO EXERCISE DISCRETION – where the appellant was convicted by jury of two counts of doing a malicious act with intent under s 317 Criminal Code 1899 (Qld) – where the appellant contends that the trial judge erred in refusing him leave to cross-examine the complainant about his criminal history – where the appellant contends that the trial judge failed to exercise the discretions given by s 5(3)(b) Criminal Law (Rehabilitation of Offenders) Act and s 15A Evidence Act 1977 (Qld) – where the respondent Crown concedes that the trial judge incorrectly construed those provisions but argues that no substantial miscarriage of justice has actually occurred – where identification of the attacker and the complainant’s credibility were the central issues at trial – whether the trial judge erred in failing to exercise the discretion – whether the appeal ought to be dismissed regardless CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – OTHER CASES – where the appellant was convicted by jury of two counts of doing a malicious act with intent under s 317 Criminal Code 1899 (Qld) – where identification of the attacker was a central issue at trial – where the defence case was that someone other than the appellant attacked the complainant and that the appellant’s testimony was false – where the appellant contends that the trial judge erred in refusing to allow him to lead evidence of the violent criminal history of another suspect in the police investigation – whether the trial judge erred in refusing to admit that evidence Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld), s 5(2), s 5(3)(b) Evidence Act 1977 (Qld), s 15A, s 16 Hally v Starkey & Anor, Ex parte Hally [1962] Qd R 474, cited R v Glattback[2007] QCA 204, cited R v Millar [2000] 1 Qd R 437; [1998] QCA 276, cited Warry v P B Pty Ltd[1999] QCA 154, distinguished
COUNSEL:	J McInnes for the appellant D Balic for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent