R v DAY - [2010] QCA 369

SUPREME COURT OF QUEENSLAND

CITATION:

R v DAY [2010] QCA 369

PARTIES:

R
v
DAY
(applicant/appellant)

FILE NO/S:

CA No 40 of 2010
SC No 1148 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

23 December 2010

DELIVERED AT:

Brisbane

HEARING DATE:

8 November 2010

JUDGES:

Fraser and White JJA and McMeekin 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 –MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant was convicted after trial of murdering her youngest son and daughter, and of attempting to kill her oldest son – where the appellant did not dispute that she killed her two younger children and attempted to kill her older child – where the defence case was that the appellant was not guilty of the two murder counts due to unsoundness of mind or only guilty of manslaughter by reason of diminished responsibility – where the appellant contended that the prosecution adduced inadmissible evidence concerning earlier proceedings in the Mental Health Court resulting in a miscarriage of justice – whether evidence adduced by the prosecution from an expert witness in examination in chief was inadmissible – whether the admission of that evidence resulted in a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL –VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where the appellant contended that the convictions for murder cannot be supported by the evidence and are unsafe and unsatisfactory – where the appellant argued that there was no cogent evidence that contradicted evidence that the appellant’s abnormality of mind was such as to impair her capacity to control her actions – whether on the whole of the evidence it was reasonably open to the jury not to be satisfied on the balance of probabilities that the appellant was of diminished capacity at the time of the killings

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was sentenced to life imprisonment for the murders and 15 years imprisonment for the attempted murder – where the appellant contended that the sentence for attempted murder was manifestly excessive – whether the sentence was manifestly excessive

Criminal Code 1899 (Qld), s 27, s 304A(1), s 304A(2)

Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20, cited
Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15, cited
HML v The Queen (2008) 235 CLR 334; [2008] HCA 16, applied
Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2, cited
R v Connolly [1991] 2 Qd R 171, cited
R v…

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 [2010] QCA 369
Case: [2010] QCA 369
Decision Date: 23 December 2010

CaseChat Overview and Summary

The appellant in this case, Day, was convicted of the murder of her youngest son and daughter and of the attempted murder of her oldest son. She appealed against her conviction and sentence, arguing that the trial was marred by the improper admission of evidence which led to a miscarriage of justice. Day also argued that the convictions were not supported by the evidence and were unsafe and unsatisfactory, and that the sentence for the attempted murder was manifestly excessive.

The legal issues that the court needed to decide included whether the evidence adduced by the prosecution from an expert witness in examination in chief was inadmissible and whether its admission resulted in a miscarriage of justice. The court also needed to determine whether, on the whole of the evidence, it was reasonably open to the jury not to be satisfied on the balance of probabilities that Day was of diminished capacity at the time of the killings. Finally, the court needed to consider whether the sentence for the attempted murder was manifestly excessive.

The court found that the evidence was properly admitted and did not result in a miscarriage of justice. The court held that it was open to the jury to conclude that Day was not suffering from an abnormality of mind at the time of the killings, and that the convictions were supported by the evidence. The court also found that the sentence for the attempted murder was not manifestly excessive. Consequently, the appeal against conviction was dismissed and the application for leave to appeal against sentence was refused.

The court made two orders: firstly, that the appeal against conviction be dismissed, and secondly, that the application for leave to appeal against sentence be 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

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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 [2010] QCA 369
PARTIES:	R v DAY (applicant/appellant)
FILE NO/S:	CA No 40 of 2010 SC No 1148 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	23 December 2010
DELIVERED AT:	Brisbane
HEARING DATE:	8 November 2010
JUDGES:	Fraser and White JJA and McMeekin 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 –MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant was convicted after trial of murdering her youngest son and daughter, and of attempting to kill her oldest son – where the appellant did not dispute that she killed her two younger children and attempted to kill her older child – where the defence case was that the appellant was not guilty of the two murder counts due to unsoundness of mind or only guilty of manslaughter by reason of diminished responsibility – where the appellant contended that the prosecution adduced inadmissible evidence concerning earlier proceedings in the Mental Health Court resulting in a miscarriage of justice – whether evidence adduced by the prosecution from an expert witness in examination in chief was inadmissible – whether the admission of that evidence resulted in a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL –VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where the appellant contended that the convictions for murder cannot be supported by the evidence and are unsafe and unsatisfactory – where the appellant argued that there was no cogent evidence that contradicted evidence that the appellant’s abnormality of mind was such as to impair her capacity to control her actions – whether on the whole of the evidence it was reasonably open to the jury not to be satisfied on the balance of probabilities that the appellant was of diminished capacity at the time of the killings CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was sentenced to life imprisonment for the murders and 15 years imprisonment for the attempted murder – where the appellant contended that the sentence for attempted murder was manifestly excessive – whether the sentence was manifestly excessive Criminal Code 1899 (Qld), s 27, s 304A(1), s 304A(2) Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20, cited Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15, cited HML v The Queen (2008) 235 CLR 334; [2008] HCA 16, applied Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2, cited R v Connolly [1991] 2 Qd R 171, cited R v…