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 1998DIVISION: 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 madeORDER: 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, consideredCOUNSEL: S J Hamlyn-Harris for the appellant
T A C Winn for the respondentSOLICITORS: 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…
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- AGLC
- R v Day [2000] QCA 313
- Case
- [2000] QCA 313
- Decision Date
CaseChat Overview and Summary
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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