R v Fox - [2002] QCA 425

SUPREME COURT OF QUEENSLAND

CITATION:

R v Fox [2002] QCA 425

PARTIES:

R
v
FOX, Brett Thomas
(applicant)

FILE NO/S:

CA No 88 of 2002
DC No 429 of 1999

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Ipswich

DELIVERED EXTEMPORE ON:

15 October 2002

DELIVERED AT:

Brisbane

HEARING DATE:

15 October 2002

JUDGES:

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

ORDER:

Appeal against conviction dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – IMPROPER ADMISSION OF EVIDENCE – where applicant convicted of grievous bodily harm and assault – where co-accused, Burton, had conviction set aside on appeal due to doubtful quality of identification evidence – whether effect of identification of co-accused Burton was crucial to the appellant’s conviction – whether the fact that evidence of identification was insufficient to support the conviction of Burton means that it is unavailable as against the appellant – whether the evidence as a whole was sufficient to support the conviction

COUNSEL:

B G Devereaux for the applicant
B G Campbell for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

HOLMES J: The appellant was convicted on the 8th of August 2001 of one count of grievous bodily harm with intent to do grievous bodily harm and one count of assault occasioning bodily harm whilst armed and in company. He had been tried with two co-accused, Ricky Lyle Ellem and Dion Edward Burton.

The Crown case was that there had been bad blood between the three men on the one hand and the two individuals assaulted, Phuong Douc Nguyen, the complainant on the first count, and his girlfriend, Kristi Beggs, the complainant on the second count.

Mr Nguyen and Ms Beggs suspected Burton of stealing a good deal of their property. They had come to know him through a mutual friend and neighbour, Ian Matheson, who was also Ellem's half brother. On 1st of January 1999 the two complainants went with Matheson and five other people to a residence at Leichhardt where the appellant lived with his de facto wife, Ms Setch, and their two year old son. Ellem also resided there as a boarder. What was intended, it seems, was a confrontation with Burton.

On their arrival there was an interchange between Matheson and Ellem with Matheson demanding to know where Burton was. When he did not get a satisfactory answer, Matheson proceeded to smash the door and windows of the house. The group then dispersed when they believed the police had been called.

On the evening of 4th of January 1999, the complainants were at home at their unit, also in Leichhardt, not too far away from the appellant's home. A police officer gave evidence that the distance by the shortest route from the appellant's house to…

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 Fox

Details

AGLC: R v Fox [2002] QCA 425
Case: [2002] QCA 425
Decision Date: 15 October 2002

CaseChat Overview and Summary

The appeal was brought by a person convicted of grievous bodily harm and assault, referred to as Fox, against his conviction. Fox's co-accused, Burton, had his conviction set aside on appeal due to the doubtful quality of identification evidence. The court was tasked with determining whether the identification of Burton was crucial to Fox's conviction and whether the insufficient evidence against Burton rendered the identification evidence unavailable against Fox. The court also had to decide whether the evidence as a whole was sufficient to support Fox's conviction.

The court examined the nature of the identification evidence and its relevance to Fox's conviction. It noted that while the identification evidence was insufficient to support Burton's conviction, this did not necessarily mean that it was unavailable as against Fox. The court held that the identification evidence, when considered in conjunction with the other evidence, was sufficient to support Fox's conviction. The court found that the evidence of the victim's injuries, the circumstances of the assault, and other witness statements provided a strong basis for the conviction. The court concluded that the identification evidence played a significant but not determinative role in establishing Fox's guilt.

Given the analysis, the court dismissed the appeal against Fox's conviction. The court found that the evidence, when considered as a whole, was sufficient to support the conviction. The doubtful quality of the identification evidence did not undermine the overall reliability of the evidence against Fox. The appeal was thus dismissed, and the conviction was upheld.

Orders

Orders of the court

Appeal against conviction 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 Fox [2002] QCA 425
PARTIES:	R v FOX, Brett Thomas (applicant)
FILE NO/S:	CA No 88 of 2002 DC No 429 of 1999
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Ipswich
DELIVERED EXTEMPORE ON:	15 October 2002
DELIVERED AT:	Brisbane
HEARING DATE:	15 October 2002
JUDGES:	McPherson and Davies JJA and Holmes J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Appeal against conviction dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – IMPROPER ADMISSION OF EVIDENCE – where applicant convicted of grievous bodily harm and assault – where co-accused, Burton, had conviction set aside on appeal due to doubtful quality of identification evidence – whether effect of identification of co-accused Burton was crucial to the appellant’s conviction – whether the fact that evidence of identification was insufficient to support the conviction of Burton means that it is unavailable as against the appellant – whether the evidence as a whole was sufficient to support the conviction
COUNSEL:	B G Devereaux for the applicant B G Campbell for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent