R v English - [2004] QCA 378

SUPREME COURT OF QUEENSLAND

CITATION:

R v English [2004] QCA 378

PARTIES:

R
v
ENGLISH, Paul Matthew
(appellant/applicant)

FILE NO/S:

CA No 197 of 2004
DC No 188 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction and Sentence

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

15 October 2004

DELIVERED AT:

Brisbane

HEARING DATE:

5 October 2004

JUDGES:

de Jersey CJ, Jerrard JA and Jones 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 dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – OTHER MATTERS – where appellant convicted after a trial of one count of grievous bodily harm – where trial judge directed jury to return a verdict of not guilty with respect to appellant’s co-accused – whether trial judge erred in not directing the jury as to what evidence could be considered against the appellant and not warning the jury to disregard the remaining or other evidence – where no request for redirection – whether appellant lost a chance of acquittal reasonably open to him

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENDER – where applicant convicted after a trial of one count of grievous bodily harm – where sentenced to 12 months imprisonment –where no evident remorse – whether sentence manifestly excessive

Amituanai (1995) 78 A Crim R 588, considered
Dhanhoa v R (2003) 199 ALR 547, applied
R v Barry [2004] QCA 105; CA No 66 of 2004, 8 April 2004, considered
R v Craske [2002] QCA 49; CA No 11 of 2002, 1 March 2002, considered
R v Dodd [1998] QCA 323; CA No 241 of 1998, 17 September 1998, considered
R v Harvey [2003] QCA 286; CA No 112 of 2003, 10 July 2003, considered

COUNSEL:

J D Henry for the appellant/applicant
R G Martin for the respondent

SOLICITORS:

Philip Bovey & Co Lawyers for the appellant/applicant
Director of Public Prosecutions (Queensland) for the respondent

de JERSEY CJ: I have had the advantage of reading the reasons for judgment of Jerrard JA. I agree with those reasons, and with the orders proposed by his Honour.

JERRARD JA: Paul Matthew English has appealed against his conviction on 8 June 2004 on a charge of having unlawfully done grievous bodily harm to his brother Michael George English, for which offence he was sentenced to 12 months imprisonment. Mr English, when sentenced, was aged 49, had no prior convictions, was described by the learned trial judge as having led a respectable, law abiding life until the commission of that offence, and the learned judge accepted that the violence Paul English had used on Michael English was out of character and motived…

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 English

Details

AGLC: R v English [2004] QCA 378
Case: [2004] QCA 378
Decision Date: 15 October 2004

CaseChat Overview and Summary

The appellant was convicted of grievous bodily harm and sentenced to 12 months imprisonment. The conviction and sentence were challenged on appeal. The appellant argued that the trial judge misdirected the jury in not warning them to disregard certain evidence against the appellant, which resulted in a failure to consider evidence that could have led to an acquittal. Additionally, the appellant contended that the sentence was manifestly excessive due to the absence of remorse.

The court considered whether the trial judge's direction to the jury constituted an error that might have affected the outcome of the trial. The court also assessed whether the sentence imposed was manifestly excessive, taking into account the appellant's lack of remorse. The court found that the trial judge did not err in directing the jury, and thus, the appellant did not lose a chance of acquittal reasonably open to him. Furthermore, the court held that the sentence was not manifestly excessive despite the lack of remorse.

The appeal against the conviction was dismissed, and the application for leave to appeal against the sentence was also dismissed. The appellant's conviction and sentence were therefore upheld.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence dismissed

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 English [2004] QCA 378
PARTIES:	R v ENGLISH, Paul Matthew (appellant/applicant)
FILE NO/S:	CA No 197 of 2004 DC No 188 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction and Sentence
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	15 October 2004
DELIVERED AT:	Brisbane
HEARING DATE:	5 October 2004
JUDGES:	de Jersey CJ, Jerrard JA and Jones 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 dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – OTHER MATTERS – where appellant convicted after a trial of one count of grievous bodily harm – where trial judge directed jury to return a verdict of not guilty with respect to appellant’s co-accused – whether trial judge erred in not directing the jury as to what evidence could be considered against the appellant and not warning the jury to disregard the remaining or other evidence – where no request for redirection – whether appellant lost a chance of acquittal reasonably open to him CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENDER – where applicant convicted after a trial of one count of grievous bodily harm – where sentenced to 12 months imprisonment –where no evident remorse – whether sentence manifestly excessive Amituanai (1995) 78 A Crim R 588, considered Dhanhoa v R (2003) 199 ALR 547, applied R v Barry [2004] QCA 105; CA No 66 of 2004, 8 April 2004, considered R v Craske [2002] QCA 49; CA No 11 of 2002, 1 March 2002, considered R v Dodd [1998] QCA 323; CA No 241 of 1998, 17 September 1998, considered R v Harvey [2003] QCA 286; CA No 112 of 2003, 10 July 2003, considered
COUNSEL:	J D Henry for the appellant/applicant R G Martin for the respondent
SOLICITORS:	Philip Bovey & Co Lawyers for the appellant/applicant Director of Public Prosecutions (Queensland) for the respondent