R v Cox - [2013] QCA 19

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cox [2013] QCA 19

PARTIES:

R
v
COX, David John
(appellant/applicant)

FILE NO/S:

CA No 136 of 2012
DC No 25 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Emerald

DELIVERED ON:

15 February 2013

DELIVERED AT:

Brisbane

HEARING DATE:

6 February 2013

JUDGES:

Margaret McMurdo P and Muir JA and Dalton J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal against conviction dismissed.

2. Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – OTHER MATTERS – where the appellant was convicted of assault occasioning bodily harm whilst armed – where the appellant struck the complainant on the forehead with a beer bottle and left the premises – where the appellant told police that he had experienced an alcoholic blackout – where the appellant relies on the absence of fingerprint and DNA evidence – where the appellant contends that there were false allegations and inconsistencies in the complainant’s statements – where the appellant contends that the police investigation was poor – where the appellant attributes his failure to dispute the complainant’s assertions to sarcasm and a desire to leave it to the complainant to withdraw his false complaint – whether a miscarriage of justice occurred

CRIMINAL LAW – APPEAL AND NEW TRIAL APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was convicted of assault occasioning bodily harm whilst armed – where the appellant was sentenced to 12 months imprisonment with a parole release date fixed at four and a half months after the commencement of the sentence – where the appellant contends that the penalty ought not be commensurate with cases in which the evidence before the jury was particularly strong – whether the sentence was manifestly excessive

R v Bennett [2007] QCA 324, cited
R v McDonald [2005] QCA 383, cited

COUNSEL:

The appellant/applicant appeared on his own behalf
B J Merrin for the respondent

SOLICITORS:

The appellant/applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

MARGARET McMURDO P: I agree with Muir JA’s reasons for dismissing the appeal against conviction and refusing the application for leave to appeal against sentence.

MUIR JA: The appellant was convicted on 9 May 2012 of assault occasioning bodily harm whilst armed and sentenced to 12 months imprisonment with a parole release date fixed at a date four and a half months after the commencement of the sentence. The appellant appeals against his conviction on the grounds discussed below. He seeks leave to appeal against sentence on grounds which were not identified in his application for leave to appeal.

The complainant gave evidence to the following effect. He was a trade’s assistant working for a subcontractor at Blackwater Mine. The appellant worked in the same…

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 Cox

Details

AGLC: R v Cox [2013] QCA 19
Case: [2013] QCA 19
Decision Date: 15 February 2013

CaseChat Overview and Summary

In the matter of R v Cox, the appellant appealed against his conviction and sentence for assault occasioning bodily harm whilst armed. The appellant had struck the complainant on the forehead with a beer bottle, causing injury, and then left the premises. The appellant contended that he had experienced an alcoholic blackout and did not recall the incident. The court was required to consider whether there was a miscarriage of justice and whether the sentence was manifestly excessive.

The primary issues before the court were whether the absence of fingerprint and DNA evidence, the alleged inconsistencies in the complainant's statements, and the perceived shortcomings in the police investigation warranted a new trial. Additionally, the court had to determine if the sentence imposed was disproportionate given the evidence presented at trial.

The court found that the evidence provided a reliable account of the events, despite the appellant's claims of memory loss. The absence of fingerprint and DNA evidence did not undermine the complainant's testimony, which was corroborated by other witnesses. The court further held that the alleged inconsistencies in the complainant's statements were not significant enough to warrant a new trial. Regarding the police investigation, the court found no procedural flaws that would necessitate a fresh trial. The appellant's failure to challenge the complainant's assertions was attributed to his attitude and not to any procedural error. As for the sentence, the court determined that it was not manifestly excessive, taking into account the gravity of the assault and the need for general deterrence.

Accordingly, the appeal against conviction was dismissed, and the application for leave to appeal against the sentence was also 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

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

Full text does not contain this section.

CITATION:	R v Cox [2013] QCA 19
PARTIES:	R v COX, David John (appellant/applicant)
FILE NO/S:	CA No 136 of 2012 DC No 25 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Emerald
DELIVERED ON:	15 February 2013
DELIVERED AT:	Brisbane
HEARING DATE:	6 February 2013
JUDGES:	Margaret McMurdo P and Muir JA and Dalton J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal against conviction dismissed. 2. Application for leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – OTHER MATTERS – where the appellant was convicted of assault occasioning bodily harm whilst armed – where the appellant struck the complainant on the forehead with a beer bottle and left the premises – where the appellant told police that he had experienced an alcoholic blackout – where the appellant relies on the absence of fingerprint and DNA evidence – where the appellant contends that there were false allegations and inconsistencies in the complainant’s statements – where the appellant contends that the police investigation was poor – where the appellant attributes his failure to dispute the complainant’s assertions to sarcasm and a desire to leave it to the complainant to withdraw his false complaint – whether a miscarriage of justice occurred CRIMINAL LAW – APPEAL AND NEW TRIAL APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was convicted of assault occasioning bodily harm whilst armed – where the appellant was sentenced to 12 months imprisonment with a parole release date fixed at four and a half months after the commencement of the sentence – where the appellant contends that the penalty ought not be commensurate with cases in which the evidence before the jury was particularly strong – whether the sentence was manifestly excessive R v Bennett [2007] QCA 324, cited R v McDonald [2005] QCA 383, cited
COUNSEL:	The appellant/applicant appeared on his own behalf B J Merrin for the respondent
SOLICITORS:	The appellant/applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent