R v Evans - [2004] QCA 458

SUPREME COURT OF QUEENSLAND

CITATION:

R v Evans [2004] QCA 458

PARTIES:

R
v
EVANS, Phirajit
(appellant/applicant)

FILE NO/S:

CA No 216 of 2004
SC No 462 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

26 November 2004

DELIVERED AT:

Brisbane

HEARING DATE:

27 October 2004

JUDGES:

McPherson and Davies JJA and Fryberg J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

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 – Particular grounds – Unreasonable or insupportable verdict – Other cases – Whether a reasonable jury could have rejected as a rational inference the possibility that the appellant did not intend to kill her husband

CRIMINAL LAW – Appeal and new trial and inquiry after conviction – Objections and points not raised in court below – Misdirection and non-direction – Particular cases – Whether trial judge should have directed evidence of hostility had limited relevance to the issue of intent – Whether trial judge should have warned against too readily making an assumption of murderous intent – Whether it was reasonably possible that a failure to direct the jury affected the verdict

CRIMINAL LAW – Appeal and new trial and inquiry after conviction – Appeal against sentence – Appeal by convicted persons – Applications to reduce sentence – When refused – Particular offences - Offences against the person – Generally – Attempted murder – Previous convictions for breaching domestic violence orders

BRS v The Queen (1997) 191 CLR 275, referred to
KRM v The Queen (1997) (2001) 206 CLR 221, cited
R v Chevathen and Dorrick [2001] QCA 337; CA No 301 of 2000 and CA No 31 of 2001, 24 August 2001, discussed
R v Glattback [2004] QCA 356; CA No 53 of 2004, 1 October 2004, followed

COUNSEL:

A J Rafter SC for the appellant/applicant
R G Martin for the respondent

SOLICITORS:

Callaghan Lawyers for the appellant/applicant
Director of Public Prosecutions (Queensland) for the respondent

McPHERSON JA: For the reasons given by Fryberg J, which I have had the advantage of reading, the appeal against conviction should be dismissed. The application for leave to appeal against sentence should also be dismissed.

DAVIES JA: I agree with the reasons for judgment of Fryberg J and with the orders he proposes.

FRYBERG J: On 3 April this year, Phirajit Evans was convicted on two counts of attempting to murder her husband Christopher Evans, but was acquitted of two counts of attempting to murder his baby son, Chad Dillon-Ham. The facts were largely uncontroversial. Toward the end of 1996, Ms Evans, then aged 34 and the mother of a teenage daughter, met Mr Evans in a bar on Samui Island, a holiday destination in Thailand. After they had spent two or three months together, Mr Evans invited…

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 Evans

Details

AGLC: R v Evans [2004] QCA 458
Case: [2004] QCA 458
Decision Date: 26 November 2004

CaseChat Overview and Summary

The appeal in R v Evans involved the appellant, who had been convicted of attempted murder, challenging both the conviction and the sentence imposed. The court was tasked with determining whether the conviction was unreasonable or insupportable, and if there were any errors in the trial judge's directions to the jury. Additionally, the court considered the application for leave to appeal against the sentence, which was argued on the basis of the appellant's previous convictions for breaching domestic violence orders.

The legal issues before the court included whether a reasonable jury could have rejected the possibility that the appellant did not intend to kill her husband, despite the evidence presented. The court also examined whether the trial judge should have directed the jury on the limited relevance of evidence of hostility to the issue of intent and whether a warning against assuming murderous intent without sufficient evidence was necessary. The appellant argued that these potential misdirections or non-directions could have influenced the verdict.

In dismissing the appeal against conviction, the court held that the evidence was sufficient for a reasonable jury to conclude that the appellant intended to kill her husband. The court found no error in the trial judge's directions to the jury, determining that any potential misdirection did not affect the verdict. The court further concluded that the sentence was appropriate given the appellant's history of domestic violence, and therefore, the application for leave to appeal against the sentence was also dismissed.

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 Evans [2004] QCA 458
PARTIES:	R v EVANS, Phirajit (appellant/applicant)
FILE NO/S:	CA No 216 of 2004 SC No 462 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	26 November 2004
DELIVERED AT:	Brisbane
HEARING DATE:	27 October 2004
JUDGES:	McPherson and Davies JJA and Fryberg J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	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 – Particular grounds – Unreasonable or insupportable verdict – Other cases – Whether a reasonable jury could have rejected as a rational inference the possibility that the appellant did not intend to kill her husband CRIMINAL LAW – Appeal and new trial and inquiry after conviction – Objections and points not raised in court below – Misdirection and non-direction – Particular cases – Whether trial judge should have directed evidence of hostility had limited relevance to the issue of intent – Whether trial judge should have warned against too readily making an assumption of murderous intent – Whether it was reasonably possible that a failure to direct the jury affected the verdict CRIMINAL LAW – Appeal and new trial and inquiry after conviction – Appeal against sentence – Appeal by convicted persons – Applications to reduce sentence – When refused – Particular offences - Offences against the person – Generally – Attempted murder – Previous convictions for breaching domestic violence orders BRS v The Queen (1997) 191 CLR 275, referred to KRM v The Queen (1997) (2001) 206 CLR 221, cited R v Chevathen and Dorrick [2001] QCA 337; CA No 301 of 2000 and CA No 31 of 2001, 24 August 2001, discussed R v Glattback [2004] QCA 356; CA No 53 of 2004, 1 October 2004, followed
COUNSEL:	A J Rafter SC for the appellant/applicant R G Martin for the respondent
SOLICITORS:	Callaghan Lawyers for the appellant/applicant Director of Public Prosecutions (Queensland) for the respondent