R v Clark

Case [2007] QCA 168

SUPREME COURT OF QUEENSLAND

CITATION:

R v Clark [2007] QCA 168

PARTIES:

R
v
CLARK, Steve Jay
(appellant/applicant)

FILE NO/S:

CA No 9 of 2007
DC No 175 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

25 May 2007

DELIVERED AT:

Brisbane

HEARING DATE:

18 April 2007

JUDGES:

Jerrard and Keane JJA and Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeal against conviction dismissed
2. Application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – where appellant responsible for securing complainant's harness on ride – where complainant fell from ride – where appellant convicted of unlawfully causing grievous bodily harm – whether jury were entitled to conclude that failure to secure harness constituted criminal negligence under s 289 Criminal Code (Qld) – whether learned trial judge erred in failing to rule the appellant had no case to answer

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 – whether summing up was unbalanced

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – EXPRESSION OF JUDGE'S OWN OPINION – PARTICULAR CASES – where prosecution led evidence that appellant had stated he was affected by alcohol and drugs – where learned trial judge commented on how jury could use evidence – whether comments improper

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – whether jury properly directed in relation to s 289 Criminal Code

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where appellant sentenced to two years and eight months imprisonment – where deterrence not relevant – where sentence justified on basis of harm caused to complainant – whether appropriate basis for sentence – whether sentence manifestly excessive

Criminal Code Act 1899 (Qld), s 289, s 320

R v Amituanai (1995) 78 A Crim R 588, applied

R v Bateman (1925) 19 Cr App R 8, cited

R v BBD [2006] QCA 441; CA No 166 of 2006, 3 November 2006, distinguished

R v Reid [2006] QCA 202; CA No 9 of 2006, 9 June 2006, applied

R v Willmot (No 2) [1985] 2 Qd R 413, applied

Stuart v The Queen (1974) 134 CLR 426, applied

COUNSEL:

A Collins for appellant
D L Meredith…

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Details
AGLC
R v Clark [2007] QCA 168
Case
[2007] QCA 168
Decision Date

CaseChat Overview and Summary

In the matter of R v Clark, the appellant was convicted of unlawfully causing grievous bodily harm under section 289 of the Criminal Code (Qld). The case involved the appellant, who was responsible for securing the complainant's harness on an amusement ride, from which the complainant subsequently fell. The appellant was convicted following the jury's determination that the failure to properly secure the harness constituted criminal negligence. The appellant appealed against both the conviction and the sentence.

The legal issues before the court were whether the jury was entitled to conclude that the failure to secure the harness constituted criminal negligence under section 289 of the Criminal Code, and if the learned trial judge erred in failing to rule that the appellant had no case to answer. The court also needed to determine whether there were any misdirections or non-directions to the jury, including whether the summing up was unbalanced or whether the learned trial judge improperly expressed their own opinion on particular cases. Additionally, the court had to consider whether the jury was properly directed in relation to section 289 of the Criminal Code.

The court held that the jury was entitled to conclude that the failure to secure the harness constituted criminal negligence under section 289 of the Criminal Code. The learned trial judge did not err in failing to rule that the appellant had no case to answer. The court found no misdirections or non-directions to the jury, including that the summing up was not unbalanced and that the learned trial judge did not improperly express their own opinion on particular cases. Furthermore, the court held that the jury was properly directed in relation to section 289 of the Criminal Code. In regards to the sentence, the court held that the sentence was not manifestly excessive and was justified on the basis of the harm caused to the complainant.

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

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence 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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