R v Day - [2000] QCA 313

SUPREME COURT OF QUEENSLAND

CITATION: R v Day [2000] QCA 313

PARTIES: R
v
DAY, Mark Walter
(appellant)

FILE NO/S: CA No 60 of 2000
SC No 475 of 1998

DIVISION: Court of Appeal

PROCEEDING: Appeal against conviction

ORIGINATING COURT:
Supreme Court at Brisbane

DELIVERED ON: 4 August 2000

DELIVERED AT: Brisbane

HEARING DATE: 21 June 2000

JUDGES: Pincus, Davies and Thomas JJA
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 – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL – MISDIRECTION AND NON-DIRECTION – GENERALLY – directions to jury on use of previous offences of appellant – error in failing to specifically direct that the sole use that should be made of evidence of previous convictions was to reduce the credibility of particular witnesses – application of proviso in s 668E(1A) of the Criminal Code

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – CONDUCT OF LEGAL PRACTITIONERS - whether cross-examination or address of crown prosecutor occasioned miscarriage of justice – accident – whether defence of accident should have been left to jury – evidence not such that jury could conclude that it was reasonably possible that death could not have been reasonably foreseen by an ordinary person in the position of the appellant – whether cross-examination calculated to appeal to prejudice or to distract jury from the issues – observations on comment’s “freedom of speech which public policy demands” – whether questions as to character of appellant went beyond scope of leave to cross-examine as to previous convictions

Criminal Code (Qld), s 23
Evidence Act 1977 (Qld), s 15(2)(c)

BRS v R (1997) 191 CLR 275, considered
Clyne v New South Wales Bar Association (1960) 104 CLR 186, considered
Donnini v The Queen (1972) 128 CLR 114, considered
R v Bojovic [1999] QCA 206,CA No 4 of 1999, 8 June 1999, considered
R v Ciseau CA No 470 of 1993 & 155 of 1994, 8 November 1994, considered
R v Hay and Lindsay [1968] Qd R 459, considered
R v Knuth [1998] QCA 161, CA No 64 of 1998, 23 June 1998, considered
R v M [1991] 2 Qd R 68, considered
R v Taiters ex parte Attorney-General [1997] 1 Qd R 333, considered
R v Van Den Bemd [1995] 1 Qd R 401, considered

COUNSEL: S J Hamlyn-Harris for the appellant
T A C Winn for the respondent

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

PINCUS JA: I have read and, except as to one issue, agree generally with the reasons of Thomas JA.

As Thomas JA points out, the Crown prosecutor obtained leave to cross-examine the accused about the offences in his criminal history; the judge excepted…

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 Day

Details

AGLC: R v Day [2000] QCA 313
Case: [2000] QCA 313
Decision Date: 4 August 2000

CaseChat Overview and Summary

The appeal before the Court of Criminal Appeal was brought by the appellant, Day, against his conviction and sentence for manslaughter. The court was tasked with determining whether there had been a miscarriage of justice that warranted a new trial. The appeal focused on several issues, including the direction given to the jury regarding the use of the appellant’s previous convictions, the conduct of the prosecutor during cross-examination, and whether the defence of accident should have been left to the jury. The appellant argued that these factors combined to create a substantial risk of a miscarriage of justice.

The Court of Criminal Appeal began by examining the trial judge’s directions to the jury about the use of the appellant’s previous convictions. The court noted that the trial judge had erred by not specifically directing the jury that the evidence of previous convictions should only be used to assess the credibility of witnesses. The court found, however, that this error did not result in a substantial miscarriage of justice. Furthermore, the court considered the prosecutor’s cross-examination and submissions, finding that they did not occasion a miscarriage of justice. The evidence presented did not support a conclusion that the death could not have been reasonably foreseen, and the comments made did not appeal to prejudice or distract from the issues.

In reaching its decision, the Court of Criminal Appeal applied the proviso in section 668E(1A) of the Criminal Code, which outlines the circumstances under which a new trial may be granted. The court concluded that the error in the jury direction, while significant, did not amount to a substantial miscarriage of justice. The appeal was dismissed, and the conviction and sentence for manslaughter were upheld.

Orders

Orders of the court

Appeal dismissed

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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CITATION:	R v Day [2000] QCA 313
PARTIES:	R v DAY, Mark Walter (appellant)
FILE NO/S:	CA No 60 of 2000 SC No 475 of 1998
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against conviction
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	4 August 2000
DELIVERED AT:	Brisbane
HEARING DATE:	21 June 2000
JUDGES:	Pincus, Davies and Thomas JJA 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 – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL – MISDIRECTION AND NON-DIRECTION – GENERALLY – directions to jury on use of previous offences of appellant – error in failing to specifically direct that the sole use that should be made of evidence of previous convictions was to reduce the credibility of particular witnesses – application of proviso in s 668E(1A) of the Criminal Code CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – CONDUCT OF LEGAL PRACTITIONERS - whether cross-examination or address of crown prosecutor occasioned miscarriage of justice – accident – whether defence of accident should have been left to jury – evidence not such that jury could conclude that it was reasonably possible that death could not have been reasonably foreseen by an ordinary person in the position of the appellant – whether cross-examination calculated to appeal to prejudice or to distract jury from the issues – observations on comment’s “freedom of speech which public policy demands” – whether questions as to character of appellant went beyond scope of leave to cross-examine as to previous convictions Criminal Code (Qld), s 23 Evidence Act 1977 (Qld), s 15(2)(c) BRS v R (1997) 191 CLR 275, considered Clyne v New South Wales Bar Association (1960) 104 CLR 186, considered Donnini v The Queen (1972) 128 CLR 114, considered R v Bojovic [1999] QCA 206,CA No 4 of 1999, 8 June 1999, considered R v Ciseau CA No 470 of 1993 & 155 of 1994, 8 November 1994, considered R v Hay and Lindsay [1968] Qd R 459, considered R v Knuth [1998] QCA 161, CA No 64 of 1998, 23 June 1998, considered R v M [1991] 2 Qd R 68, considered R v Taiters ex parte Attorney-General [1997] 1 Qd R 333, considered R v Van Den Bemd [1995] 1 Qd R 401, considered
COUNSEL:	S J Hamlyn-Harris for the appellant T A C Winn for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent