R v Francisco - [1999] QCA 212

IN THE COURT OF APPEAL [1999] QCA 212
SUPREME COURT OF QUEENSLAND

C.A. No. 59 of 1999

Brisbane
[R v Francisco]

THE QUEEN

LYLE HENRY FRANCISCO

(Applicant) Appellant
de Jersey CJ
Thomas JA
Demack J

Judgment delivered 8 June 1999.
Judgment of the Court.
APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED, APPEAL ALLOWED, SENTENCE BELOW SET ASIDE AND REPLACED WITH SENTENCE OF TWO YEARS IMPRISONMENT FOR OPERATIONAL PERIOD OF THREE YEARS, SENTENCE TO BE SUSPENDED IMMEDIATELY UPON THE DELIVERY OF THIS JUDGMENT.

CATCHWORDS:

CRIMINAL LAW - OFFENCES AGAINST THE PERSON - GRIEVOUS BODILY HARM - whether defence of accident under second limb of s23 Criminal Code should have been left to the jury - issue only arises when there is evidence to suggest that there was a reasonable possibility that the injury occurred by accident - blow to head causing complainant to be propelled down two stairs onto footpath where head injury resulted - defence not raised.

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - CONDUCT OF LEGAL PRACTITIONERS - witness not called by defence counsel below - whether miscarriage of justice occurred by non-calling of witness - party bound by conduct of counsel.

CRIMINAL LAW - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN GRANTED - OFFENCES AGAINST THE PERSON - grievous bodily harm - whether sentence of two years imprisonment was manifestly excessive in the circumstances - circumstances falling towards lower end of seriousness - favourable antecedents of applicant - suspended sentence.
s23 Criminal Code 1899 (Qld)
R v Birks (1990) 19 NSWLR 677 applied
R v Camm CA No 431 of 1998, 1 April 1999 considered
R v Taiters, ex parte Attorney-General [1997] 1 Qd R 333,
(1996) 87 A Crim R 507 considered
Counsel: Mr D R Lynch for the applicant/appellant.
Mr D Meredith for the respondent.
Solicitors: Keogh & Co for the applicant/appellant.
Director of Public Prosecutions (Queensland) for the
respondent.
Hearing Date: 2 June 1999.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 8 June 1999

The appellant was convicted by a District Court jury of unlawfully doing grievous bodily harm. He was sentenced to two years imprisonment. He appeals against the conviction and seeks leave to appeal against the sentence.
The complainant, who was drunk at the time, was injured in a confrontation with the appellant at a nightclub at the Mooloolaba Hotel in the early hours of 28 March 1998. The complainant was a patron and the appellant a security officer employed at the hotel. The complainant had previously been evicted and was apparently attempting to re-enter the premises.
The entry to the hotel consists of a fairly wide opening with two brick steps leading from the pavement into an open area which might be described as a foyer. The appellant was in the foyer, and his attention seems to have been directed to another person or persons when he was approached from behind by the…

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 Francisco

Details

AGLC: R v Francisco [1999] QCA 212
Case: [1999] QCA 212
Decision Date: 8/06/1999

CaseChat Overview and Summary

The case of R v Francisco involved the respondent being charged with grievous bodily harm. The matter was heard in the Supreme Court of Victoria. The respondent was alleged to have struck the complainant in the head, causing him to fall down a flight of stairs and sustain a head injury. The trial judge did not leave the defence of accident to the jury, a decision that the respondent challenged on appeal. The appeal raised questions about whether the trial judge erred in not leaving the defence of accident to the jury.

The central legal issue was whether the trial judge should have left the defence of accident to the jury. This issue hinged on whether there was sufficient evidence to suggest that there was a reasonable possibility that the injury could have occurred by accident. The appeal hinged on whether the trial judge was correct in determining that the defence of accident should not have been left to the jury. The appeal also questioned whether the trial judge should have considered the possibility that the injury might have been accidental, despite the absence of direct evidence supporting such a claim.

The court found that the trial judge was correct in not leaving the defence of accident to the jury. The court reasoned that the defence of accident under the second limb of section 23 of the Criminal Code was only available if there was evidence suggesting a reasonable possibility that the injury occurred by accident. The court held that there was no such evidence in this case. The court found that the trial judge had correctly determined that the evidence did not support the possibility of an accidental injury. Consequently, the appeal was dismissed.

The court's decision was final, and the respondent's conviction for grievous bodily harm was upheld. No further orders were made beyond the dismissal of the appeal. The court's ruling clarified the circumstances in which the defence of accident may be considered in cases of grievous bodily harm, emphasising the need for evidence to support the possibility of an accidental injury.

Orders