R v DBG - [2013] QCA 370

SUPREME COURT OF QUEENSLAND

CITATION:

R v DBG [2013] QCA 370

PARTIES:

R
v
DBG
(appellant/applicant)

FILE NO/S:

CA No 177 of 2013
DC No 195 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

10 December 2013

DELIVERED AT:

Brisbane

HEARING DATE:

21 November 2013

JUDGES:

Muir and Gotterson JJA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Appeal dismissed.1.

Application for leave to appeal against sentence refused.2.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where the appellant was convicted of assault occasioning bodily harm of his daughter – where a publication of the Queensland Government Department of Communities titled “Stopping abuse and violence” was found in the jury room following the verdict – where the appellant contends that with the presence of a document in the jury room, a miscarriage of justice occurred – where it was argued that accessing the document amounted to undertaking independent research which the learned trial judge had directed the jury not to do – where the appellant contended that there was a real risk that the jury, or one or some of the members of it, had been influenced to a view of what was reasonable in terms of s 280 of the Criminal Code (Qld) by the content of the document – where it is accepted that an irregularity occurred – where it is appropriate to have regard not only to the text of the publication but also to the directions given by the trial judge – whether the jury would have returned the same verdict if this irregularity had not occurred – whether a miscarriage of justice occurred

Criminal Code 1899 (Qld), s 280, s 339(1), s 339(3), s 668E(1)

R v Brown[2012] QCA 155, applied
R v Marsland, unreported, NSWCCA No 60263 of 1990, 17 July 1991
R v Rudkowsky, unreported, NSWCCA, No 60646 of 1992, 15 December 1992

COUNSEL:

The appellant/applicant appeared on his own behalf
P J McCarthy for the respondent

SOLICITORS:

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

MUIR JA: I agree with the reasons of Gotterson JA and with his proposed orders.

GOTTERSON JA: After a trial over four days in the District Court at Maroochydore, the appellant, DBG, was convicted on 17 June 2013 on one count of assault occasioning bodily harm. The count alleged an offence against ss 339(1) and (3) of the Criminal Code (Qld) in that on 20 November 2011, the appellant unlawfully assaulted the complainant, his 14 year old daughter, DL, in the aggravating circumstance that he was armed with an offensive instrument.

By way of sentence, the appellant was ordered to perform 120 hours of unpaid community service. The learned trial judge also ordered that no conviction be recorded.

On 11 July 2013…

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 DBG

Details

AGLC: R v DBG [2013] QCA 370
Case: [2013] QCA 370
Decision Date: 10 December 2013

CaseChat Overview and Summary

The appellant, DBG, was convicted of assault occasioning bodily harm to his daughter and appealed against his conviction and sentence. The appeal centred around an irregularity that occurred during the trial, namely the presence of a publication in the jury room following the verdict. The publication, titled "Stopping abuse and violence," was published by the Queensland Government Department of Communities. DBG contended that the presence of this document in the jury room constituted a miscarriage of justice, as it amounted to the jury undertaking independent research which the trial judge had expressly prohibited. He argued that there was a real risk that the jury had been influenced by the content of the document in determining what was reasonable in terms of s 280 of the Criminal Code (Qld).

The court considered whether the irregularity led to a miscarriage of justice. It examined not only the content of the publication but also the directions given by the trial judge. The court held that while an irregularity had indeed occurred, it was not sufficient to conclude that a miscarriage of justice had taken place. The court found that it was not likely that the jury would have reached a different verdict had the irregularity not occurred. The court further determined that the trial judge's directions to the jury were sufficient to prevent any potential influence from the publication.

In conclusion, the appeal against the conviction was dismissed, and the application for leave to appeal against sentence was refused. The court found that the irregularity, while present, did not result in a miscarriage of justice. The conviction and sentence of the appellant were upheld, and no new trial was ordered.

Orders

Orders of the court

Appeal dismissed.1.

Application for leave to appeal against sentence refused.2.

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 DBG [2013] QCA 370
PARTIES:	R v DBG (appellant/applicant)
FILE NO/S:	CA No 177 of 2013 DC No 195 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	10 December 2013
DELIVERED AT:	Brisbane
HEARING DATE:	21 November 2013
JUDGES:	Muir and Gotterson JJA and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Appeal dismissed.1. Application for leave to appeal against sentence refused.2.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where the appellant was convicted of assault occasioning bodily harm of his daughter – where a publication of the Queensland Government Department of Communities titled “Stopping abuse and violence” was found in the jury room following the verdict – where the appellant contends that with the presence of a document in the jury room, a miscarriage of justice occurred – where it was argued that accessing the document amounted to undertaking independent research which the learned trial judge had directed the jury not to do – where the appellant contended that there was a real risk that the jury, or one or some of the members of it, had been influenced to a view of what was reasonable in terms of s 280 of the Criminal Code (Qld) by the content of the document – where it is accepted that an irregularity occurred – where it is appropriate to have regard not only to the text of the publication but also to the directions given by the trial judge – whether the jury would have returned the same verdict if this irregularity had not occurred – whether a miscarriage of justice occurred Criminal Code 1899 (Qld), s 280, s 339(1), s 339(3), s 668E(1) R v Brown[2012] QCA 155, applied R v Marsland, unreported, NSWCCA No 60263 of 1990, 17 July 1991 R v Rudkowsky, unreported, NSWCCA, No 60646 of 1992, 15 December 1992
COUNSEL:	The appellant/applicant appeared on his own behalf P J McCarthy for the respondent
SOLICITORS:	The appellant/applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent