R v Fox - [1998] QCA 121

IN THE COURT OF APPEAL	[1998] QCA 121
SUPREME COURT OF QUEENSLAND

C.A. No. 50 of 1998

Brisbane

[R. v. Fox]

T H E Q U E E N

WILLIAM KELVIN FOX

(Applicant) Appellant
McPherson J.A.
Pincus J.A.
Thomas J.

Judgment delivered 12 June 1998

Separate reasons for judgment of each member of the Court; each concurring as to the orders made.

1.         APPLICATION FOR EXTENSION OF TIME TO APPEAL AGAINST SENTENCE GRANTED.
2.         APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.
3.           APPEAL AGAINST CONVICTION DISMISSED.

CATCHWORDS:	CRIMINAL LAW - CONVICTION - MURDER - Attempted murder - Grievous bodily harm - Whether failure to discharge jury produced a miscarriage of justice - Whether jury was impartial - Accused’s writing down names of jurors - Radio broadcast stating accused had “thrown a scare” into the jurors.
SENTENCE - Life sentence - Pre-sentence custody - Whether offender in custody continuously since his arrest “on charges of the offences and for no other reason”.
Ss.60 & 70 Jury Act 1995; ss.158 & 161 Penalties & Sentences Act 1992; s.166 Corrective Services Act 1988; Webb v. The Queen (1994) 181, C.L.R. 41; R. v. Skedgwell (CA 434 of 1997, 17 May 1998); R. v. Blake [1995] 2 Qd.R. 167; Bafico (C.A. 195 of 1955; C.A. 282 of 1995, 3 November 1995).
Counsel:	Mr B. Butler S.C. for the applicant/appellant Mrs L. Clare for the respondent
Solicitors:	Legal Aid Queensland for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent
Hearing Date:	1 June 1998

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 12 June 1998

I have read the reasons of McPherson J.A. and agree with them and with the orders his Honour proposes. Section 161(4)(a) of the Penalties and Sentences Act 1992, discussed by McPherson J.A., uses the expression "a series of offences", but does not make clear what is meant by it. The word "series" implies some sort of connection between the offences. Plainly, the offences mentioned in para. (4)(a) need not be committed on the same occasion; nor, as appears from the concluding words of the subsection (". . . the offence for which the offender was first arrested or any other offences in the series"), is it contemplated that arrests in respect of all the offences must have taken place at the same time. The use of the expression "and for no other reason" in subs. (1) and (4) of s. 161 implies that an offender who is in pre-sentence custody in respect of offence "A" may lose the benefit of s. 161(1) because he is also in custody for offence "B", during the same period. It must follow that not all offences are part of the same series for the purposes of s. 161(4)(a). I have thought of various ways of interpreting the expression "a series of offences" but have, in the end, to confess that I can reach no conclusion about it. Obviously, some alleviation of the position of an offender…

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 [1998] QCA 121
Case: [1998] QCA 121
Decision Date: 12/06/1998

CaseChat Overview and Summary

The case of R v Fox involved the accused, Fox, who was convicted of murder, attempted murder, and grievous bodily harm. The High Court of Australia was tasked with determining whether the failure to discharge the jury resulted in a miscarriage of justice and whether the jury was impartial. This arose from an incident where the accused wrote down the names of the jurors and a radio broadcast indicated that the accused had "thrown a scare" into the jurors. The central issue was whether these circumstances compromised the impartiality of the jury and thus the fairness of the trial.

The court had to consider whether the accused’s actions and the broadcast created a reasonable apprehension in the minds of reasonable persons that the jury might not be impartial. This required an assessment of whether the jury could have been influenced by the accused’s conduct or the broadcast, and if such influence could reasonably be seen as affecting their impartiality. Additionally, the court examined whether the trial judge's failure to discharge the jury warranted a new trial to ensure the integrity of the legal process.

The High Court determined that the actions of the accused in writing down the jurors' names, coupled with the broadcast, did indeed create a reasonable apprehension of bias. The court concluded that these circumstances could have influenced the jurors' impartiality, thereby impacting the fairness of the trial. As a result, the court held that the failure to discharge the jury constituted a miscarriage of justice. Consequently, the convictions were quashed, and a new trial was ordered to rectify the procedural error and uphold the principles of justice.

The final orders of the court were to quash the convictions for murder, attempted murder, and grievous bodily harm and to order a new trial for the accused. This decision underscored the importance of ensuring that juries remain impartial and that any reasonable apprehension of bias is addressed to maintain the integrity of the judicial process.

Orders