R v Dempsey - [2001] QCA 141

[2001] QCA 141

COURT OF APPEAL

McPHERSON JA
WHITE J
HOLMES J

CA No 356 of 2000

THE QUEEN

LIONEL PATRICK DEMPSEY Appellant

BRISBANE

..DATE 17/04/2001

JUDGMENT

WHITE J: Mr Dempsey appears on his own behalf in his appeal against conviction and his application for leave to appeal against sentence.

When he made his submissions, he focused almost completely upon his application for leave to appeal against sentence but in the course of discussion he was able to make some further reference to the grounds as set out in his grounds of appeal as to why the conviction was good for an appeal.

The appellant was convicted after a trial of one count of grievous bodily harm with intent to do grievous bodily harm on 22 November 2000 in the District Court at Mount Isa. He was sentenced to a term of imprisonment of seven years on
27 November and 20 days presentence custody were declared as time already served.

The circumstances of the offence were that the complainant was the appellant's ex de facto wife and the mother of two of his children. On the date of the offence, 20 November 1998, he had visited the complainant's home in Mount Isa, it would appear, to spend some time visiting his daughters.

He went into the lounge room of the home and made some comment to the complainant's young son, David, who was aged nine. As a result of this comment, there was an argument between himself and the complainant during which she hit the appellant on the face. He then got up, grabbed her by the hair, commenced hitting her and the complainant said that he said that he was going to kill her.

He forced her into the kitchen and whilst he was holding her head down he took a knife from the kitchen drawer and stabbed her six times in the back and in the side. He continued to attack the complainant who then had sought shelter under the ironing board in the kitchen and he inflicted two further wounds to her shoulder. There was also a wound inflicted to her left hand as she attempted to defend herself. The attack came to an end when the complainant kneed the appellant in the groin.

As a result of the wounds from the knife, both the complainant's lungs collapsed and she spent three days in intensive care at the hospital and a further two weeks in hospital following that.

In the appellant's written grounds of appeal, he said that the learned trial Judge erred in failing to direct the jury in respect of the circumstantial nature of the Crown case, that he had failed to direct the jury adequately or at all with respect to the drawing of inferences and that the learned trial Judge had failed to correct a submission made to the jury by the Prosecutor to the effect that the defence case was based on an appeal for sympathy for the appellant.

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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 Dempsey

Details

AGLC: R v Dempsey [2001] QCA 141
Case: [2001] QCA 141
Decision Date: 17/04/2001

CaseChat Overview and Summary

In the appeal of R v Dempsey, the appellant, Lionel Patrick Dempsey, contested his conviction and sentence for grievous bodily harm with intent. The case was heard by the Court of Appeal in Brisbane, with McPherson JA, White J, and Holmes J presiding. Dempsey was convicted and sentenced to seven years in prison, with 27 days of presentence custody credited as time served. The appellant focused on his application for leave to appeal against sentence but also addressed grounds for appeal against conviction.

The legal issues before the court were whether the trial judge erred in not directing the jury on the circumstantial nature of the Crown's case and the drawing of inferences, and if he failed to correct an alleged misstatement by the prosecutor about the defence's appeal to sympathy. The court found that there was direct evidence of the assault, and the trial judge had adequately addressed intent and the effect of alcohol. The prosecutor's comments did not warrant intervention by the trial judge.

Regarding the sentence, Dempsey presented a history of criminal behaviour, including a prior conviction for assault. He sought early parole due to concerns about his one-year-old son's welfare, who was in the care of Dempsey's sisters, both of whom abused alcohol. The court found the sentence of seven years to be appropriate given the severity of the crime and Dempsey's criminal history, and no recommendation for parole was made. The court suggested drawing the attention of the relevant authorities to the child's welfare.

The appeal against conviction was dismissed, and the application for leave to appeal against sentence was refused. The court ordered that the welfare of Dempsey's son be referred to the appropriate authorities.

Orders