R v Duncan - [2006] QCA 46

SUPREME COURT OF QUEENSLAND

CITATION:

R v Duncan [2006] QCA 46

PARTIES:

R
v
DUNCAN, Ross Ian
(appellant/applicant)

FILE NO/S:

CA No 266 of 2005
DC No 247 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

3 March 2006

DELIVERED AT:

Brisbane

HEARING DATE:

10 February 2006

JUDGES:

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

ORDER:

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence granted only to the extent of:
a) setting aside the sentence of 12 months’ imprisonment for count 3 and substituting for it a sentence of six months, to be served concurrently; and
b) setting aside the compensation order

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – WHERE GROUNDS FOR INTERFERENCE WITH VERDICT – PARTICULAR CASES – WHERE APPEAL DISMISSED – where trial judge refused address on self-defence – where self-defence not left for jury’s consideration – whether trial judge erred – whether proviso applicable

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT - SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – TOTALITY – where applicant convicted of burglary, grievous bodily harm and wilful and unlawful damage – where term of imprisonment imposed, serious violent offender declaration made and compensation ordered – whether sentence manifestly excessive

Criminal Code 1899 (Qld), s 419, s 668E(1A)
Penalties and Sentences Act 1992 (Qld) s 35, s 161B

R v Corry [2005] QCA 87; CA No 306 of 2004, 1 April 2005 followed
Stevens v The Queen [2005] HCA 65; B20 of 2005, 21 October 2005, followed

COUNSEL:

A J Rafter SC for the appellant/applicant
M J Copley for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant/applicant
Director of Public Prosecutions (Queensland) for the respondents

McMURDO P: Muir J in his reasons sets out the relevant facts and issues so that I can briefly state my own reasons for reaching a different conclusion and allowing the appeal.

I agree with Muir J that self-defence was raised on the evidence and should have been left for the jury's consideration. It follows that the appeal against conviction must be allowed and the appellant's convictions on burglary with circumstances of aggravation and grievous bodily harm quashed unless this Court considers the appeal should be dismissed because no substantial miscarriage of justice has actually occurred: s 668E(1A) Criminal Code 1899 (Qld): Weiss v The Queen.[1]
[1][2005] HCA 81, 15 December 2005.

The appellant pleaded guilty to wilful damage. He pleaded not guilty to and went to trial on the offences of burglary and grievous bodily harm. The count of burglary contained two circumstances of aggravation: first, that the appellant was armed with an…

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 Duncan

Details

AGLC: R v Duncan [2006] QCA 46
Case: [2006] QCA 46
Decision Date: 3 March 2006

CaseChat Overview and Summary

In the matter of R v Duncan, the appellant appealed against both his conviction and the sentence imposed by the Supreme Court of Queensland. The appellant was found guilty of burglary, grievous bodily harm, and wilful and unlawful damage. The appeal against conviction centred on the trial judge's refusal to address the jury on self-defence, a crucial aspect that was not left for the jury's consideration. The appellant argued that the trial judge erred in not providing direction on self-defence, which could have potentially led to a different verdict.

The court was required to determine whether the trial judge's failure to address self-defence constituted an error that warranted interference with the verdict. The central legal issue was whether the proviso applied, which allows for interference where there has been a failure to leave an issue to the jury. The court also needed to consider whether the sentence imposed was manifestly excessive given the totality of the circumstances. The appellant contended that the 12-month imprisonment term for count 3, along with the serious violent offender declaration and the compensation order, was excessively harsh.

The court dismissed the appeal against conviction, finding that there was no error on the part of the trial judge in not addressing self-defence, and that the proviso did not apply in this case. However, the court granted the application for leave to appeal against the sentence. The appeal against the sentence was partly successful, as the court set aside the 12-month imprisonment term for count 3, substituting it with a six-month sentence to be served concurrently. Additionally, the compensation order was also set aside. This nuanced decision reflects the court's careful consideration of both the procedural and sentencing aspects of the case.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence granted only to the extent of:

a) setting aside the sentence of 12 months’ imprisonment for count 3 and substituting for it a sentence of six months, to be served concurrently; and

b) setting aside the compensation order

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

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CITATION:	R v Duncan [2006] QCA 46
PARTIES:	R v DUNCAN, Ross Ian (appellant/applicant)
FILE NO/S:	CA No 266 of 2005 DC No 247 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	3 March 2006
DELIVERED AT:	Brisbane
HEARING DATE:	10 February 2006
JUDGES:	McMurdo P and Jerrard JA and Muir J Separate reasons for judgment of each member of the Court, Jerrard JA and Muir J concurring as to the orders made, McMurdo P dissenting
ORDER:	1. Appeal against conviction dismissed 2. Application for leave to appeal against sentence granted only to the extent of: a) setting aside the sentence of 12 months’ imprisonment for count 3 and substituting for it a sentence of six months, to be served concurrently; and b) setting aside the compensation order
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – WHERE GROUNDS FOR INTERFERENCE WITH VERDICT – PARTICULAR CASES – WHERE APPEAL DISMISSED – where trial judge refused address on self-defence – where self-defence not left for jury’s consideration – whether trial judge erred – whether proviso applicable CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT - SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – TOTALITY – where applicant convicted of burglary, grievous bodily harm and wilful and unlawful damage – where term of imprisonment imposed, serious violent offender declaration made and compensation ordered – whether sentence manifestly excessive Criminal Code 1899 (Qld), s 419, s 668E(1A) Penalties and Sentences Act 1992 (Qld) s 35, s 161B R v Corry [2005] QCA 87; CA No 306 of 2004, 1 April 2005 followed Stevens v The Queen [2005] HCA 65; B20 of 2005, 21 October 2005, followed
COUNSEL:	A J Rafter SC for the appellant/applicant M J Copley for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant/applicant Director of Public Prosecutions (Queensland) for the respondents