R v Cornwell - [2009] QCA 294

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cornwell [2009] QCA 294

PARTIES:

R
v
CORNWELL, Jason Darryl
(appellant)

FILE NO/S:

CA No 110 of 2009
DC No 19 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

6 October 2009

DELIVERED AT:

Brisbane

HEARING DATE:

23 September 2009

JUDGES:

Muir and Fraser JJA and Jones J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Appeal allowed

2.   Verdicts of the jury set aside

3.   Retrial ordered

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – CONTROL OF PROCEEDINGS – DISCHARGE OF JURY – where appellant convicted, after trial, of unlawful assault causing bodily harm while in company – where victim impact statement sworn by the complainant was not provided to the appellant until after the jury had begun deliberating – where appellant requested the primary judge discharge the jury as the statement contained prior inconsistent statements upon which the complainant might have been cross-examined – where application was refused – whether opportunity which the appellant was denied "could have made a difference to the verdict"

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – where appellant sentenced to six months imprisonment wholly suspended with an operational period of 18 months – whether sentence manifestly excessive in all the circumstances

Criminal Code 1899 (Qld), s 590AB(1), s 590AB(2), s 590AH(2)(c)(i)(A)

Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26, applied
Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35, applied
R v HAU [2009] QCA 165, applied
R v Rollason and Jenkins; ex parte Attorney-General [2008] 1 Qd R 85; [2007] QCA 65, cited

COUNSEL:

F Richards for the appellant
M R Byrne for the respondent

SOLICITORS:

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

MUIR JA:Introduction

The appellant and his half-sister, Melissa Cornwell, were convicted on 24 April 2009 after a trial in the District Court of unlawful assault causing bodily harm while in company with each other. The offence of which Miss Cornwell was convicted included the aggravating circumstance of being armed with an offensive weapon. They were each sentenced to six months imprisonment wholly suspended with an operational period of 18 months.

The appellant appeals against conviction and sentence. Before considering the grounds of appeal it is useful to summarise the evidence.

The appellant and the complainant were acquaintances. The complainant's wife, Mrs Morris, from time to time sought refuge with the appellant's mother, Mrs Cornwell. The complainant objected to Mrs Morris residing with Mrs Cornwell. Mrs Morris gave evidence that at times the complainant would come to Mrs Cornwell's residence and scream out abuse. A week before the subject incident, the residence was severely damaged by fire. Mrs Cornwell swore that the complainant telephoned…

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 Cornwell

Details

AGLC: R v Cornwell [2009] QCA 294
Case: [2009] QCA 294
Decision Date: 6 October 2009

CaseChat Overview and Summary

The appeal before the court was brought by the appellant, who had been convicted of unlawful assault causing bodily harm while in company. The complainant had sworn a victim impact statement which was not provided to the appellant until after the jury had begun deliberating. The appellant had requested the primary judge to discharge the jury as the statement contained prior inconsistent statements upon which the complainant might have been cross-examined. The primary judge had refused the application. The appellant argued that the opportunity which was denied to him could have made a difference to the verdict. The court also considered whether the sentence of six months imprisonment wholly suspended with an operational period of 18 months was manifestly excessive in all the circumstances.

The court considered the legal issues of whether the primary judge should have discharged the jury and whether the sentence was manifestly excessive. The court held that the primary judge should have discharged the jury as the appellant had been denied an opportunity to cross-examine the complainant on prior inconsistent statements, which could have made a difference to the verdict. The court held that the sentence was not manifestly excessive in all the circumstances.

The court allowed the appeal, set aside the verdicts of the jury and ordered a retrial. The court found that the primary judge should have discharged the jury as the appellant had been denied an opportunity to cross-examine the complainant on prior inconsistent statements, which could have made a difference to the verdict. The court held that the sentence was not manifestly excessive in all the circumstances. The court ordered a retrial as the appellant had been denied a fair trial due to the late provision of the victim impact statement.

The orders of the court were that the appeal be allowed, the verdicts of the jury be set aside and a retrial be ordered. The court held that the primary judge should have discharged the jury as the appellant had been denied an opportunity to cross-examine the complainant on prior inconsistent statements, which could have made a difference to the verdict. The court held that the sentence was not manifestly excessive in all the circumstances. The court ordered a retrial as the appellant had been denied a fair trial due to the late provision of the victim impact statement.

Orders

Orders of the court

1. Appeal allowed

2. Verdicts of the jury set aside

3. Retrial ordered

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Cornwell [2009] QCA 294
PARTIES:	R v CORNWELL, Jason Darryl (appellant)
FILE NO/S:	CA No 110 of 2009 DC No 19 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	6 October 2009
DELIVERED AT:	Brisbane
HEARING DATE:	23 September 2009
JUDGES:	Muir and Fraser JJA and Jones J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal allowed 2. Verdicts of the jury set aside 3. Retrial ordered
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – CONTROL OF PROCEEDINGS – DISCHARGE OF JURY – where appellant convicted, after trial, of unlawful assault causing bodily harm while in company – where victim impact statement sworn by the complainant was not provided to the appellant until after the jury had begun deliberating – where appellant requested the primary judge discharge the jury as the statement contained prior inconsistent statements upon which the complainant might have been cross-examined – where application was refused – whether opportunity which the appellant was denied "could have made a difference to the verdict" CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – where appellant sentenced to six months imprisonment wholly suspended with an operational period of 18 months – whether sentence manifestly excessive in all the circumstances Criminal Code 1899 (Qld), s 590AB(1), s 590AB(2), s 590AH(2)(c)(i)(A) Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26, applied Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35, applied R v HAU [2009] QCA 165, applied R v Rollason and Jenkins; ex parte Attorney-General [2008] 1 Qd R 85; [2007] QCA 65, cited
COUNSEL:	F Richards for the appellant M R Byrne for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent