R v Da Costa - [2005] QCA 385

SUPREME COURT OF QUEENSLAND

CITATION:

R v Da Costa [2005] QCA 385

PARTIES:

R
v
DA COSTA, Rui Michael
(appellant)

FILE NO/S:

CA No 142 of 2005
DC No 1795 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

14 October 2005

DELIVERED AT:

Brisbane

HEARING DATE:

26 September 2005

JUDGES:

McPherson and Keane JJA and Douglas J

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – PRESENTATION OF DEFENCE CASE AND CROWN CASE AND REVIEW OF EVIDENCE – GENERALLY – where appellant convicted of unlawful wounding – where offence was committed in company – where no evidence as to which of the accused had done the actual wounding – where Crown case was that the appellant was either directly responsible for the wounding or was a guilty party to it – where appellant argued that the verdict was unsafe and unsatisfactory on the grounds that there was impermissible speculation on the part of the jury – whether verdict safe

Criminal Code 1899 (Qld), s 2, s 7(1)(a), s 7(1)(b), s 7(1)(c)

Edwards v The Queen (1993) 178 CLR 193, referred to
R v Ancuta [1991] 2 Qd R 413, followed
R v Bainbridge [1960] 1 QB 129, cited
R v Barlow (1997) 188 CLR 1, followed
R v Beck [1990] 1 Qd R 30, cited
R v Jeffrey [2003] 2 Qd R 306, [1997] QCA 460, referred to
R v Jervis[1993] 1 Qd R 643, cited
R v Lowrie and Ross [2000] 2 Qd R 529, [1999] QCA 305, referred to
R v Powell [1999] 1 AC 1, applied
R v Sherrington and Kuchler [2001] QCA 105; CA No 239 and CA No 245 of 2000, 6 April 2001, cited
R v Smith (1837) 8 C & P 160; 173 ER 441, referred to

COUNSEL:

C W Heaton for the appellant
M R Byrne for the respondent

SOLICITORS:

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

McPHERSON JA: I have read and I agree with the reasons of Douglas J in dismissing the appeal against conviction in this matter.

The criminal responsibility of the appellant depended on the evidence against him at the trial establishing the requirements of one or more of the subparagraphs (a), (b) or (c) of s 7(1) of the Criminal Code. Whether or not it was under s 7(1)(a) open to the jury to conclude that the appellant was the person who “actually does the act” constituting the offence of wounding in this case, I am satisfied that the jury were entitled on the evidence to find him guilty as a party under either s 7(1)(b) or s 7(1)(c) of the Code.

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 Da Costa

Details

AGLC: R v Da Costa [2005] QCA 385
Case: [2005] QCA 385
Decision Date: 14 October 2005

CaseChat Overview and Summary

The appeal involved an individual, referred to as the appellant, who had been convicted of unlawful wounding in company. The appellant contended that the jury's verdict was unsafe and unsatisfactory, primarily due to what the appellant argued was impermissible speculation on the jury's part. The case was heard and determined in the High Court of Australia. The critical issue before the court was whether the jury's verdict was safe and sound, considering that there was no direct evidence linking the appellant to the actual act of wounding.

The court examined the evidence presented and the jury's reasoning in the context of the appellant's involvement in the offence. It was established that while the Crown's case posited that the appellant was either directly responsible for the wounding or a party to it, there was no conclusive evidence identifying who among the accused had inflicted the injury. The appellant's argument focused on the alleged impermissible speculation by the jury in reaching their conclusion. The court considered whether the jury had been properly directed on the necessity of proof beyond reasonable doubt and whether the verdict could stand without reliance on impermissible speculation.

After a thorough review, the High Court concluded that the jury's verdict was safe and that the appellant's contentions regarding impermissible speculation were not substantiated. The court found that the jury had been correctly directed on the legal principles and that the evidence, when viewed as a whole, supported the conviction. The appeal was dismissed, and the conviction remained intact.

Orders

Orders of the court

Appeal 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 Da Costa [2005] QCA 385
PARTIES:	R v DA COSTA, Rui Michael (appellant)
FILE NO/S:	CA No 142 of 2005 DC No 1795 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	14 October 2005
DELIVERED AT:	Brisbane
HEARING DATE:	26 September 2005
JUDGES:	McPherson and Keane JJA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – PRESENTATION OF DEFENCE CASE AND CROWN CASE AND REVIEW OF EVIDENCE – GENERALLY – where appellant convicted of unlawful wounding – where offence was committed in company – where no evidence as to which of the accused had done the actual wounding – where Crown case was that the appellant was either directly responsible for the wounding or was a guilty party to it – where appellant argued that the verdict was unsafe and unsatisfactory on the grounds that there was impermissible speculation on the part of the jury – whether verdict safe Criminal Code 1899 (Qld), s 2, s 7(1)(a), s 7(1)(b), s 7(1)(c) Edwards v The Queen (1993) 178 CLR 193, referred to R v Ancuta [1991] 2 Qd R 413, followed R v Bainbridge [1960] 1 QB 129, cited R v Barlow (1997) 188 CLR 1, followed R v Beck [1990] 1 Qd R 30, cited R v Jeffrey [2003] 2 Qd R 306, [1997] QCA 460, referred to R v Jervis[1993] 1 Qd R 643, cited R v Lowrie and Ross [2000] 2 Qd R 529, [1999] QCA 305, referred to R v Powell [1999] 1 AC 1, applied R v Sherrington and Kuchler [2001] QCA 105; CA No 239 and CA No 245 of 2000, 6 April 2001, cited R v Smith (1837) 8 C & P 160; 173 ER 441, referred to
COUNSEL:	C W Heaton for the appellant M R Byrne for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent