R v. Finlay

[2007] QCA 400

SUPREME COURT OF QUEENSLAND

CITATION:

R v Finlay [2007] QCA 400

PARTIES:

R
v
FINLAY, Rodney Stanislaus
(applicant/appellant)

FILE NO/S:

CA No 23 of 2007
CA No 96 of 2007
SC No 888 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

16 November 2007

DELIVERED AT:

Brisbane

HEARING DATE:

25 September 2007

JUDGES:

Holmes JA, Jones and Lyons JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeal dismissed
2. Application for leave to appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – where the appellant was convicted by a jury of one count of attempted burglary, one count of malicious act with intent and one count of common assault – whether the verdict was unsafe and unsatisfactory – whether Domican v The Queen (1992) 173 CLR 555 and Jones v Dunkel (1959) 101 CLR 298 directions should have been given to the jury – whether direction as to evidence of alibi witness was unfairly prejudicial

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where the applicant was sentenced to 10 years imprisonment with a declaration of a serious violent offence imposed in respect of the count of malicious act with intent – whether the sentence imposed was manifestly excessive

Corrective Services Act 2006 (Qld), s 176

Domican v The Queen (1992) 173 CLR 555, distinguished
Festa v The Queen (2001) 208 CLR 593
Jones v Dunkel (1959) 101 CLR 298
R v Benz (1989) 168 CLR 110
R v Braham (1994) 73 A Crim R 353
R v Yates [1985] VR 41
R v Zullo [1993] 2 Qd R 572, distinguished

COUNSEL:

S Di Carlo for the applicant/appellant
M R Byrne for the respondent

SOLICITORS:

Queensland Law Group for the applicant/appellant
Director of Public Prosecutions (Queensland) for the respondent

1. OLMES JAH:  The appellant appealed against his conviction by a jury of one count of attempted burglary, one count of malicious act with intent and one of common assault. (He was acquitted of attempted murder, the alternative to the count of malicious act with intent.)  He also sought leave to appeal against a sentence of 10 years imprisonment with a declaration of a serious violent offence imposed in respect of the count of malicious act with intent.  The sole ground of the appeal against conviction was that the verdict was unsafe and unsatisfactory, but counsel was given leave to add grounds concerned with Domican[1] and Jones v Dunkel[2] directions which, it was said, should have been given, and what was said to be a defective and prejudicial direction as to the credibility…