R v Civic - [2014] QCA 322

SUPREME COURT OF QUEENSLAND

CITATION:

R v Civic [2014] QCA 322

PARTIES:

R
v
CIVIC, Mirko
(applicant)

FILE NOS:

CA No 121 of 2013
CA No 131 of 2013
SC No 381 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

5 December 2014

DELIVERED AT:

Brisbane

HEARING DATE:

16 May 2014

JUDGES:

Fraser JA and Atkinson and Jackson JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

The order of the Court is that:

1.    In CA No 121 of 2013: the application for leave to appeal against conviction is dismissed.

2.    In CA No 131 of 2013: the application for leave to appeal against sentence is dismissed.

3.    In both CA No 121 of 2013 and CA No 131 of 2013: the application to adduce evidence is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – FRESH EVIDENCE – where the applicant was convicted and sentenced for the offence of manslaughter – where the applicant sought to tender further evidence – where the evidence sought to be tendered was a statutory declaration by the applicant’s son, retracting his earlier statement that the knife used to stab the deceased was the applicant’s knife, and providing statements that the applicant drank two bottles of whiskey after the stabbing but before being interviewed by police – whether the further evidence should be received

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF DEFENCE COUNSEL – where the applicant argued that the defence counsel at trial should have called the applicant and the applicant’s son to give evidence – where the applicant argued that the applicant had not been properly interviewed by counsel as to his version of events – where the applicant argued that counsel failed to adequately challenge the credibility of and versions of events provided by certain witnesses – whether there was any miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted and sentenced for the offence of manslaughter – where the applicant and the deceased had a fight and the applicant stabbed the deceased, causing his death – where the applicant was sentenced to ten years imprisonment with a declaration under s 161B(1) of the Penalties and Sentences Act 1992 that the conviction was a conviction of a serious violent offence – where the applicant argued that the trial judge was bound to determine the factual basis of the jury’s verdict – whether the trial judge was bound to do so – whether the sentence was manifestly excessive in all the circumstances

Criminal Code 1899 (Qld), s 668E(1)
Penalties and Sentences Act 1992 (Qld), s 161B(1), s 161B(2), s 161B(3)

Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26, cited

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 Civic

Details

AGLC: R v Civic [2014] QCA 322
Case: [2014] QCA 322
Decision Date: 5 December 2014

CaseChat Overview and Summary

The case of R v Civic involved the applicant who was convicted and sentenced for the offence of manslaughter. The applicant sought to tender further evidence, primarily a statutory declaration by his son, which contradicted the son’s earlier statement that the knife used in the stabbing was the applicant's. The applicant also argued that the defence counsel at the trial had not properly interviewed him or called him and his son to give evidence. Additionally, the applicant contended that counsel failed to adequately challenge the credibility of certain witnesses. The applicant appealed both against his conviction and sentence, arguing that the sentence was manifestly excessive and that the trial judge should have determined the factual basis of the jury’s verdict.

The court was tasked with determining whether the statutory declaration should be admitted as fresh evidence, whether there was a miscarriage of justice due to the conduct of the defence counsel, and whether the sentence was manifestly excessive. Regarding the fresh evidence, the court held that the statutory declaration was not admissible as it was merely cumulative of the evidence already before the jury and did not meet the stringent criteria for admitting fresh evidence. Concerning the conduct of defence counsel, the court found no miscarriage of justice, as the applicant had not been improperly interviewed, and the counsel had acted within reasonable bounds. Finally, in assessing the sentence, the court held that the trial judge was not bound to determine the factual basis of the jury’s verdict and that the sentence was not manifestly excessive given the circumstances of the case.

The Court dismissed the application for leave to appeal against conviction and sentence, as well as the application to adduce further evidence. Consequently, the applicant’s appeal against both conviction and sentence was unsuccessful, and no new evidence was admitted. The orders of the Court were that the application for leave to appeal against conviction, the application for leave to appeal against sentence, and the application to adduce evidence were all dismissed.

Orders

Orders of the court

The order of the Court is that:

1. In CA No 121 of 2013: the application for leave to appeal against conviction is dismissed.

2. In CA No 131 of 2013: the application for leave to appeal against sentence is dismissed.

3. In both CA No 121 of 2013 and CA No 131 of 2013: the application to adduce evidence is 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 Civic [2014] QCA 322
PARTIES:	R v CIVIC, Mirko (applicant)
FILE NOS:	CA No 121 of 2013 CA No 131 of 2013 SC No 381 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	5 December 2014
DELIVERED AT:	Brisbane
HEARING DATE:	16 May 2014
JUDGES:	Fraser JA and Atkinson and Jackson JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	The order of the Court is that: 1. In CA No 121 of 2013: the application for leave to appeal against conviction is dismissed. 2. In CA No 131 of 2013: the application for leave to appeal against sentence is dismissed. 3. In both CA No 121 of 2013 and CA No 131 of 2013: the application to adduce evidence is dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – FRESH EVIDENCE – where the applicant was convicted and sentenced for the offence of manslaughter – where the applicant sought to tender further evidence – where the evidence sought to be tendered was a statutory declaration by the applicant’s son, retracting his earlier statement that the knife used to stab the deceased was the applicant’s knife, and providing statements that the applicant drank two bottles of whiskey after the stabbing but before being interviewed by police – whether the further evidence should be received CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF DEFENCE COUNSEL – where the applicant argued that the defence counsel at trial should have called the applicant and the applicant’s son to give evidence – where the applicant argued that the applicant had not been properly interviewed by counsel as to his version of events – where the applicant argued that counsel failed to adequately challenge the credibility of and versions of events provided by certain witnesses – whether there was any miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted and sentenced for the offence of manslaughter – where the applicant and the deceased had a fight and the applicant stabbed the deceased, causing his death – where the applicant was sentenced to ten years imprisonment with a declaration under s 161B(1) of the Penalties and Sentences Act 1992 that the conviction was a conviction of a serious violent offence – where the applicant argued that the trial judge was bound to determine the factual basis of the jury’s verdict – whether the trial judge was bound to do so – whether the sentence was manifestly excessive in all the circumstances Criminal Code 1899 (Qld), s 668E(1) Penalties and Sentences Act 1992 (Qld), s 161B(1), s 161B(2), s 161B(3) Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26, cited