R v Drier - [2006] QCA 237

SUPREME COURT OF QUEENSLAND

CITATION:

R v Drier [2006] QCA 237

PARTIES:

R
v
DRIER, Alic Joseph
(appellant)

FILE NO/S:

CA No 57 of 2006
DC No 39 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

23 June 2006

DELIVERED AT:

Brisbane

HEARING DATE:

9 June 2006

JUDGES:

McMurdo P, Holmes JA and Mackenzie J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.    Appeal against conviction allowed
2.    Conviction quashed
3.    New trial ordered

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - TESTS - WHETHER JURY WOULD HAVE RETURNED SAME VERDICT - MISDIRECTION AND NON-DIRECTION - where appellant was convicted of assault occasioning bodily harm and sentenced to two and a half years imprisonment - where appellant appeals against conviction claiming that trial judge erred in not allowing defence of provocation to go to jury, in not discharging jury following discussion before the jury about defence of provocation, in refusing to allow jury to consider complainant's driving history as a relevant consideration and in so directing jury - where appellant also applies for leave to appeal against sentence - whether trial judge should have allowed defence counsel to put evidence leading to possible defence of provocation to jury - whether trial judge should have allowed defence counsel to submit to jury that complainant's driving history was a relevant consideration

Criminal Code 1899 (Qld), s 268, s 269, s 668E(1A)

R v Cowan [2005] QCA 424; CA No 86 of 2005, 18 November 2005, cited

Stingel v The Queen (1990) 171 CLR 312, applied

Van Den Hoek v The Queen (1986) 161 CLR 158, applied

COUNSEL:

Appellant appeared on his own behalf
R G Martin SC for respondent

SOLICITORS:

Appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for respondent

McMURDO P: The appellant was convicted of assault occasioning bodily harm after a two day jury trial. He was sentenced to two and half years imprisonment. He is now self‑represented and appeals against his conviction. He contends that the trial judge erred in not allowing the defence of provocation to go to the jury; by not discharging the jury following the jury's inadvertent exposure to discussion between counsel and the trial judge about the defence of provocation; in refusing to allow defence counsel to submit to the jury that the complainant's driving history was a relevant consideration and in directing the jury to that effect; that the verdict is unsafe, unsatisfactory or otherwise unreasonable; that his counsel was incompetent and that the prosecution acted unfairly. He also applies for leave to appeal against his sentence which he contends is manifestly excessive.

The relevant evidence and aspects of the trial

Before turning to those grounds of appeal it is necessary to set out the relevant evidence and events at the…

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 Drier

Details

AGLC: R v Drier [2006] QCA 237
Case: [2006] QCA 237
Decision Date: 23 June 2006

CaseChat Overview and Summary

The appellant, Drier, appealed against his conviction for assault occasioning bodily harm, for which he was sentenced to two and a half years imprisonment. The appeal was heard in the Court of Appeal, where Drier argued that the trial judge made several errors during the trial that led to a miscarriage of justice. These included not allowing the defence of provocation to go to the jury, not discharging the jury following discussion about the defence of provocation, refusing to allow the jury to consider the complainant's driving history as a relevant consideration and directing the jury in a particular way. Drier also applied for leave to appeal against his sentence.

The court had to determine whether the trial judge should have allowed the defence of provocation to be put to the jury and whether the trial judge should have allowed the defence counsel to submit to the jury that the complainant's driving history was a relevant consideration. The court also had to decide if the trial judge's direction to the jury was correct.

The court held that the trial judge should have allowed the defence of provocation to be put to the jury and that the complainant's driving history was a relevant consideration that should have been put to the jury. The court held that the trial judge's direction to the jury was not correct. The court found that there was a significant possibility that the outcome of the trial would have been different if the trial judge had allowed the defence of provocation to be put to the jury and if the jury had been allowed to consider the complainant's driving history. The court held that there had been a miscarriage of justice and allowed the appeal against conviction. The conviction was quashed, and a new trial was ordered. The application for leave to appeal against sentence was dismissed.

Orders

Orders of the court

1. Appeal against conviction allowed

2. Conviction quashed

3. New trial ordered

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Drier [2006] QCA 237
PARTIES:	R v DRIER, Alic Joseph (appellant)
FILE NO/S:	CA No 57 of 2006 DC No 39 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	23 June 2006
DELIVERED AT:	Brisbane
HEARING DATE:	9 June 2006
JUDGES:	McMurdo P, Holmes JA and Mackenzie J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal against conviction allowed 2. Conviction quashed 3. New trial ordered
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - TESTS - WHETHER JURY WOULD HAVE RETURNED SAME VERDICT - MISDIRECTION AND NON-DIRECTION - where appellant was convicted of assault occasioning bodily harm and sentenced to two and a half years imprisonment - where appellant appeals against conviction claiming that trial judge erred in not allowing defence of provocation to go to jury, in not discharging jury following discussion before the jury about defence of provocation, in refusing to allow jury to consider complainant's driving history as a relevant consideration and in so directing jury - where appellant also applies for leave to appeal against sentence - whether trial judge should have allowed defence counsel to put evidence leading to possible defence of provocation to jury - whether trial judge should have allowed defence counsel to submit to jury that complainant's driving history was a relevant consideration Criminal Code 1899 (Qld), s 268, s 269, s 668E(1A) R v Cowan [2005] QCA 424; CA No 86 of 2005, 18 November 2005, cited Stingel v The Queen (1990) 171 CLR 312, applied Van Den Hoek v The Queen (1986) 161 CLR 158, applied
COUNSEL:	Appellant appeared on his own behalf R G Martin SC for respondent
SOLICITORS:	Appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for respondent