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R v Fahey & Ors

R v Fahey & Ors

Case [2001] QCA 82 9 March 2001

Criminal Liability

Intent to Do Grievous Bodily Harm

Appeal

Sentencing

Amendment of Indictment

Material Error

Criminal Law

Type to search within this case.

SUPREME COURT OF QUEENSLAND

CITATION:

R v Fahey, Solomon and AD [2001] QCA 82

PARTIES:

R
v
FAHEY, Joshua Joseph
(applicant)
SOLOMON, Derek James
(applicant)
AD
(applicant/appellant)

FILE NO/S:

CA No 295 of 2000
CA No 305 of 2000
CA No 345 of 2000
DC No 436 of 2000

DIVISION:

Court of Appeal

PROCEEDING:

Appeals against Sentence

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

9 March 2001

DELIVERED AT:

Brisbane

HEARING DATE:

6 February 2001

JUDGES:

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

ORDER:
1.   Crown's application for abridgement of time for making of application for prerogative order granted.

2.   Application to amend indictment granted; it is ordered that count one of Indictment No 436 of 2000 (Townsville Registry) be amended by inserting the word 'unlawfully' before the words "did grievous bodily harm to Stephen Brian Luke".

3.   Application for prerogative order dismissed.

4.   In Appeal No 295 of 2000: Appeal against sentence dismissed.

5.   In Appeal No 305 of 2000: Appeal against sentence dismissed.

6.   In Appeal No 345 of 2000: Leave to Appeal granted; appeal allowed; set aside the sentence of 6 years detention and instead substitute a sentence of four and one half years detention.

CATCHWORDS:
CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – INTENT TO DO GRIEVOUS BODILY HARM – where appellants convicted of unlawfully doing grievous bodily harm with intent – indictment failing to include word 'unlawfully' – whether 'unlawfully' an ingredient of the offence

CRIMINAL LAW – APPEAL AND NEW TRIAL – principles upon which indictment may be amended after verdict – whether error led to any disadvantage or prejudice to the accused – whether 'material' to the merits of the case

CRIMINAL LAW – INFORMATION, INDICTMENT OR PRESENTMENT – AMENDMENT – TIME FOR AMENDMENT – where Court reassembled to consider Crown application for amendment – effect of s 572 Criminal Code

CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – JUVENILE OFFENDERS – APPEAL AGAINST SENTENCE – RELEVANT PRINCIPLES – whether sentences imposed manifestly excessive – where appellant A desisted from further attack – where injuries very serious

Judicial Review Act 1991 (Qld), s 43
Criminal Code, s 317, s 320, s 572
Juvenile Justice Act 1992 (Qld), s 8 , s 121(3), s 109(2)(e)

Go v The Queen (1990) 102 FLR 299, considered
Maher v The Queen (1987) 163 CLR 221, distinguished
R v Ayes [1984] 1 All ER 619, distinguished
R v Bird and Schipper (2000) 110 A Crim R 394, considered
R v Knutsen [1963] Qd R 157, 163, considered
R v McGoldrick [1995] 1 Qd R 533, distinguished
R v M (1996) 1 Qd R 553, considered
R v Rhodes & Kissling [1998] QCA 55; CA No 347, 349 and 386 of 1998, 5 March 1999, considered
R v Stevenson (1996) 60 A Crim R 259, considered
R v S [1999] QCA 499;…

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 Fahey & Ors

Details

AGLC: R v Fahey & Ors [2001] QCA 82
Case: [2001] QCA 82
Decision Date: 9 March 2001

CaseChat Overview and Summary

The case of R v Fahey & Ors involved multiple appellants who had been convicted of unlawfully causing grievous bodily harm with intent. The appellants contested the sufficiency of the indictment, which omitted the word 'unlawfully'. The High Court of Australia was tasked with determining whether this omission was material to the offence and whether the indictment could be amended after the verdict had been delivered. Additionally, the Court considered appeals against the sentences imposed on the appellants, including whether the sentences were manifestly excessive.

The central legal issues were whether the word 'unlawfully' was an essential element of the offence and, if so, whether the indictment could be amended post-verdict. The Court also examined the principles governing the amendment of indictments after a verdict and the impact of such amendments on the fairness of the trial. The appeals against the sentences involved assessing whether the sentences were manifestly excessive in light of the circumstances and the appellants' conduct during the trial.

The Court held that the word 'unlawfully' was indeed an essential element of the offence of causing grievous bodily harm with intent, and thus, the indictment was defective. However, the Court granted leave to amend the indictment, finding that the error did not result in any prejudice to the appellants. Regarding the sentences, the Court found that the sentences imposed were not manifestly excessive, except in one case where the sentence was deemed too lenient. The Court allowed the appeal in this instance, reducing the sentence from six years to four and a half years of detention.

The orders of the Court included granting the Crown's application to amend the indictment by inserting the word 'unlawfully'. The appeals against the sentences were largely dismissed, except for one appellant whose sentence was reduced. The Court's decision underscored the importance of the precise wording of an indictment and the flexibility in allowing amendments where no prejudice has occurred to the accused.

Orders

Orders of the court

1. Crown's application for abridgement of time for making of application for prerogative order granted.

2. Application to amend indictment granted; it is ordered that count one of Indictment No 436 of 2000 (Townsville Registry) be amended by inserting the word 'unlawfully' before the words "did grievous bodily harm to Stephen Brian Luke".

3. Application for prerogative order dismissed.

4. In Appeal No 295 of 2000: Appeal against sentence dismissed.

5. In Appeal No 305 of 2000: Appeal against sentence dismissed.

6. In Appeal No 345 of 2000: Leave to Appeal granted; appeal allowed; set aside the sentence of 6 years detention and instead substitute a sentence of four and one half years detention.

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.

Citations

AGLC Citation

R v Fahey & Ors [2001] QCA 82

Most Recent Citation

R v C [2001] QCA 552

Cases citing this decision · 17 of 17 shown

R v Tav
[2022] QCA 271 Para 19

…and 8 to add the words “on a date unknown” before the word “between”. That amendment should be allowed.[38] [38]See R v Fahey , Solomon & AD [2001] QCA 82.…
R v Smith
[2022] ACTSC 288 Para 15

…at [53]–[58]. An indictment can be amended at any time during a trial: R v Bo [2014] ACTSC 287. That can even be after conviction: R v Fahey & Ors [2001] QCA 82; 1 Qd R 391. While the date is only a particular of the offence, a change will, other than in special circumstances, not mean that a different offence…
R v Knight
[2022] QCA 31 Para 12

…case; and (ii) that the accused person will not be prejudiced thereby in the person’s defence.[41] [41] R v Fahey, Solomon & AD [2002] 1 Qd R 391; [2001] QCA 82 at [16].…
Young v The Commissioner of Police
[2022] QDC 44 Para 5

…I doubt that a finding on appeal that the verdict is unreasonable is a defect (see R v Fahey, Solomon and A [2001] QCA 82) or variance between the complaint and evidence (see Felix v Smerdon (1944) 18 ALJ 30 p.30; Maher v The Queen (1987) 163 CLR 221) that would engage s 48 of the Act. In any event, it is unnece…
R v Stacker
[2020] ACTCA 34 Para 1

…on: See: R v Burns (1920) 20 SR (NSW) 351; R v Cox [1999] NSWCCA 62 at [18]; R v MAJW [2007] NSWCCA 145; 171 A Crim R 407; R v Fahey, Solomon, and AD [2001] QCA 82; 1 Qld R 391 at [13-[16].…
R v JX
[2016] QCA 240

…v AP [2003] QCA 445, cited R v Fahey, Solomon & AD [2002] 1 Qd R 391; [2001] QCA 82, cited R v Hickey (2002) 137 A Crim R 62; [2002] NSWCCA 474, cited R v Knight , unreported, New South Wales Court of Criminal Appeal, Hunt, Wood, McInerney JJ, 18 December 1990, cited R v Lapins [2007] SASC 281, cited R v McCorma…
R v Wav
[2013] QCA 345 Para 1

…licant did not object to that course. Accordingly, leave should be granted to amend the indictment in those terms. [16] R v Fahey, Solomon & AD [2001] QCA 82 at [29].…
Busby v Burrow
[2012] WASC 58 Para 9

…or decision. For an example of an amendment being made to the charge even after conviction, see R v Fahey [2002] 1 Qd R 391; (2001) 121 A Crim R 390; [2001] QCA 82.…
Cotter v The State of Western Australia
[2011] WASCA 202

…(1977) 136 CLR 465 McKay Investments Pty Ltd v Kent [2011] TASSC 11 Quaid v The Queen [2011] WASCA 141 R v Ayres [1984] AC 447 R v Fahey, Solomon & A [2001] QCA 82; [2002] 1 Qd R 391 R v Lewis [1994] 1 Qd R 613 Sabourne v The State of Western Australia [2010] WASCA 242 Suresh v The Queen [1998] HCA 23; (1998) 10…
R v Honeysett; ex parte
[2010] QCA 212 Para 1

…ant, extending to injury to the brain. Evidence of substantial continuing disability (as, for example, in Fisher [2002] QCA 534 and Fahey and Solomon [2001] QCA 82) would have rendered this case even more serious, but it remains serious because of the extent of injury inflicted on the complainant, and what is kn…
LWR v Lusted
[2009] TASSC 3 Para 1

…"interference" with a court's order. In broad terms, it is a matter of statutory reality. That reality may be very difficult to ignore. In R v Fahey [2001] QCA 82 at [45], the Court of Appeal referred to the "custodial content" of a detention period made under the not dissimilar Queensland provisions, when look…
R v. Christensen
[2007] QCA 370

…minal Proceeds Confiscation Act 2002 (Qld), s 250, s 260 R v Fahey, Solomon and AD [2002] Qd R 391; [2001] QCA 82, CA Nos 295, 305, 345, 436 of 2000, 9 March 2001, cited COUNSEL: The applicant appeared on his own behalf M J Copley for the respondent SOLICITORS: The applicant appeared on his own behalf Director o…
R v LT
[2006] QCA 534

…2005] QCA 59; CA No 325 of 2004, 11 March 2005, cited R v Dexter [2002] QCA 540; CA No 135 of 2001, 10 December 2002, cited R v Fahey, Solomon and AD [2001] QCA 82; CA Nos 295, 305, 345 of 2000, 9 March 2001, considered R v Foley [2002] QCA 522; Appeal No 4007 of 2002, 29 November 2002, cited R v Phillips & Lawr…
R v de Carteret
[2006] QCA 279 Para 1

…ng what the parties understood the case to be[3] and causes no injustice. I would order: [3] R v Fahey, Soloman and AD [2002] 1 Qd R 391 at [16]; [2001] QCA 82; CA Nos 295 of 2000, 305 of 2000, 345 of 2000, 9 March 2001.…
R v Eade
[2005] QCA 148

…QCA 18, CA No 410 of 2002, 5 January 2003, considered R v Chambers (2002) 136 A Crim R 89, considered R v Fahey and Solomon and AD [2001] QCA 82, CA No 295 of 2000, CA No 305 of 2000, CA No 345 of 2000, 9 March 2000 COUNSEL: A J Kimmins for the applicant M J Copley for the respondent SOLICITORS: Price and Roobo…
R v AP
[2003] QCA 445 Para 1

…not material to the merits of the case and the applicant will not be prejudiced in his defence on the merits: see R v Fahey, Solomon and AD. [15] [15][2001] QCA 82; CA Nos 295, 305 and 345 of 2000, 9 March 2001.…
R v C
[2001] QCA 552 Para 36

…The significance of these principles in sentencing a child have been referred to on many occasions in this Court: R v. Fahey, Solomon and AD [2001] QCA 82 at [36]-[38]; The Queen v. M [2001] QCA 11; R v. K [2000] QCA 43 at p.10; R v. S [1999] QCA 499.…

View all 17 citing cases →

Cases cited in this decision · 10 of 10 shown

R v S
[1999] QCA 499 Para 1

…years old and had some criminal history, mainly consisting of entering dwellings with intent. He did not have a history of offences of violence. [44][1999] QCA 499, CA No 323 of 1999, 1 December 1999.…
R v Hardie
[1999] QCA 352 Para 1

…ould not lose sight of the fact that the maximum penalty for this offence is life imprisonment. [45](2000) 110 A Crim R 394. [46]including R v Hardie [1999] QCA 352, R v Lepp CA 229 of 1998.…
R v Rhodes and Kissling
[1999] QCA 55 Para 1

…es & Kissling ,[32] R v Trifyllis ,[33] and R v Stevenson. [34] [30][1995] QCA 275, CA No 153 of 1995, 16 June 1995. [31](1991) 55 A Crim R 1, 4. [32][1999] QCA 55, CA No 347, 349 and 386 of 1998, 5 March 1999. [33][1998] QCA 416, CA No 358 of 1998, 11 December 1998. [34](1997) 90 A Crim R 259.…
R v Trifyllis
[1998] QCA 416 Para 1

…ited to the allowance of amendment before sentence upon motion for arrest of judgment. [8][1989] 2 Qd R 431, 435-436. [9](1991) 55 A Crim R 1, 4. [10][1998] QCA 416, CA No 358 of 1998, 11 December 1998, [21]. [11][1994] 1 Qd R 613, 624. [12](1997) 90 A Crim R 259, 266. [13][1989] 2 Qd R 431, 435-436. [14](1977) 1…
Pakall Industries (Qld) Pty Ltd v Jadhill Pty Ltd
[1998] QCA 55

…v McGoldrick [1995] 1 Qd R 533, distinguished R v M (1996) 1 Qd R 553, considered R v Rhodes & Kissling [1998] QCA 55; CA No 347, 349 and 386 of 1998, 5 March 1999, considered R v Stevenson (1996) 60 A Crim R 259, considered R v S [1999] QCA 499; CA No 323 of 1999,1 December 1999, considered COUNSEL: K M McGinne…
R v Kubik
[1995] QCA 275 Para 1

…the Queensland Criminal Code. These include R v Kubik, [30] Herscu, [31] R v Rhodes & Kissling ,[32] R v Trifyllis ,[33] and R v Stevenson. [34] [30][1995] QCA 275, CA No 153 of 1995, 16 June 1995. [31](1991) 55 A Crim R 1, 4. [32][1999] QCA 55, CA No 347, 349 and 386 of 1998, 5 March 1999. [33][1998] QCA 416, C…
John L Pty Ltd v Attorney-General (NSW)
[1987] HCA 42 Para 1

…lies in the disadvantage suffered by the defendant by reason of an information that failed to tell him what the prosecution alleged against him. [24](1987) 163 CLR 508. [25]Ibid p 519.…
Maher v The Queen
[1987] HCA 31 Para 1

…n is curable the indictment should be amended by insertion of the word "unlawfully". [2] Crane v Public Prosecutor [1921] 2 AC 299; Maher v The Queen (1987) 163 CLR 221, 233.…
Mackay v The Queen
[1977] HCA 22 Para 1

…QCA 416, CA No 358 of 1998, 11 December 1998, [21]. [11][1994] 1 Qd R 613, 624. [12](1997) 90 A Crim R 259, 266. [13][1989] 2 Qd R 431, 435-436. [14](1977) 136 CLR 465. [15]at 435. [16][1994] 1 Qd R 613 at 623.…
[1921] 2 AC 299
[1921] 2 AC 299 Para 1

…the alternative that if the omission is curable the indictment should be amended by insertion of the word "unlawfully". [2] Crane v Public Prosecutor [1921] 2 AC 299; Maher v The Queen (1987) 163 CLR 221, 233.…

Legislation cited in this decision · 7

Judicial Review Act 1991 (Qld)
43 2 mentions (from Para 1)
Juvenile Justice Act 1992 (Qld)
8 2 mentions (from Para 1)
Criminal Code Act 1983 (NT)
1 mention (from Para 1)
Criminal Practice Rules 1999 (Qld)
1 mention
Federal Commissioner of Taxation v Slater Holdings Ltd
1 mention
Indictments Act 1915 c.90
1 mention
Penalties and Sentences Act 1992 (Qld)
1 mention (from Para 1)

CITATION:	R v Fahey, Solomon and AD [2001] QCA 82
PARTIES:	R v FAHEY, Joshua Joseph (applicant) SOLOMON, Derek James (applicant) AD (applicant/appellant)
FILE NO/S:	CA No 295 of 2000 CA No 305 of 2000 CA No 345 of 2000 DC No 436 of 2000
DIVISION:	Court of Appeal
PROCEEDING:	Appeals against Sentence
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	9 March 2001
DELIVERED AT:	Brisbane
HEARING DATE:	6 February 2001
JUDGES:	McMurdo P, Thomas JA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Crown's application for abridgement of time for making of application for prerogative order granted. 2. Application to amend indictment granted; it is ordered that count one of Indictment No 436 of 2000 (Townsville Registry) be amended by inserting the word 'unlawfully' before the words "did grievous bodily harm to Stephen Brian Luke". 3. Application for prerogative order dismissed. 4. In Appeal No 295 of 2000: Appeal against sentence dismissed. 5. In Appeal No 305 of 2000: Appeal against sentence dismissed. 6. In Appeal No 345 of 2000: Leave to Appeal granted; appeal allowed; set aside the sentence of 6 years detention and instead substitute a sentence of four and one half years detention.
CATCHWORDS:	CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – INTENT TO DO GRIEVOUS BODILY HARM – where appellants convicted of unlawfully doing grievous bodily harm with intent – indictment failing to include word 'unlawfully' – whether 'unlawfully' an ingredient of the offence CRIMINAL LAW – APPEAL AND NEW TRIAL – principles upon which indictment may be amended after verdict – whether error led to any disadvantage or prejudice to the accused – whether 'material' to the merits of the case CRIMINAL LAW – INFORMATION, INDICTMENT OR PRESENTMENT – AMENDMENT – TIME FOR AMENDMENT – where Court reassembled to consider Crown application for amendment – effect of s 572 Criminal Code CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – JUVENILE OFFENDERS – APPEAL AGAINST SENTENCE – RELEVANT PRINCIPLES – whether sentences imposed manifestly excessive – where appellant A desisted from further attack – where injuries very serious Judicial Review Act 1991 (Qld), s 43 Criminal Code, s 317, s 320, s 572 Juvenile Justice Act 1992 (Qld), s 8 , s 121(3), s 109(2)(e) Go v The Queen (1990) 102 FLR 299, considered Maher v The Queen (1987) 163 CLR 221, distinguished R v Ayes [1984] 1 All ER 619, distinguished R v Bird and Schipper (2000) 110 A Crim R 394, considered R v Knutsen [1963] Qd R 157, 163, considered R v McGoldrick [1995] 1 Qd R 533, distinguished R v M (1996) 1 Qd R 553, considered R v Rhodes & Kissling [1998] QCA 55; CA No 347, 349 and 386 of 1998, 5 March 1999, considered R v Stevenson (1996) 60 A Crim R 259, considered R v S [1999] QCA 499;…