R v. Franco - [2008] QCA 342

SUPREME COURT OF QUEENSLAND

CITATION:

R v Franco [2008] QCA 342

PARTIES:

R
v
FRANCO, Ramiro
(applicant/appellant)

FILE NO/S:

CA No 180 of 2008
DC No 575 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction and Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

31 October 2008

DELIVERED AT:

Brisbane

HEARING DATE:

21 October 2008

JUDGES:

Keane and Holmes JJA and White AJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Grant the application to extend time to appeal1.

Dismiss the application for leave to appeal against sentence2.

Dismiss the appeal against conviction3.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – POWER TO DISMISS APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE – PARTICULAR MATTERS – the appellant was convicted by a jury of unlawfully wounding the complainant – the wounds were inflicted by an unknown sharp instrument – there is evidence that the wounding occurred only after the complainant aggressively punched the appellant – the learned trial judge did not direct the jury about the defence under s 271 of the Criminal Code of self-defence against unprovoked assault – whether the use of the sharp instrument was “reasonably necessary” within the meaning of the term in s 271 – whether there has been a miscarriage of justice

Criminal Code 1899 (Qld), s 271, s 668E

Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, cited
Glennon v The Queen (1994) 179 CLR 1; [1994] HCA 7, cited
R v Ellis[2007] QCA 219, cited
R v McNamara[1998] QCA 405, cited
R v Ollis and Andersen (1986) 21 A Crim R 256, cited

R v Trieu[2008] QCA 28, cited
Van Den Hoek v The Queen (1986) 161 CLR 158; [1986] HCA 76, cited
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, cited
Wilde v The Queen (1988) 164 CLR 365; [1988] HCA 6, cited

COUNSEL:

R A East for the applicant/appellant
M R Byrne for the respondent

SOLICITORS:

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

KEANE JA: I have had the advantage of reading a draft of the reasons for judgment prepared by White AJA. I agree with her Honour’s reasons and with the orders proposed by her Honour.

HOLMES JA: I agree with the reasons of White AJA and the orders she proposes.

WHITE AJA: The appellant was convicted on 4 June 2008 of one count of wounding on 11 May 2007 at Spring Hill in Brisbane. He was sentenced to two years imprisonment with a parole release date on 4 June 2009.

The appellant appeals his conviction and applied for leave to appeal against sentence. He has abandoned the application for leave to appeal against sentence. The original Notice of Appeal…

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. Franco

Details

AGLC: R v Franco [2008] QCA 342
Case: [2008] QCA 342
Decision Date: 31 October 2008

CaseChat Overview and Summary

In the matter of R v. Franco, the appellant was convicted by a jury of unlawfully wounding the complainant with an unknown sharp instrument. The complainant had aggressively punched the appellant before the wounds were inflicted. The appellant argued that the trial judge failed to direct the jury on the defence of self-defence under section 271 of the Criminal Code, and that the use of the sharp instrument was reasonably necessary in response to the unprovoked assault. The appeal was heard in the Court of Appeal, where the appellant sought to challenge both the conviction and the sentence imposed.

The primary legal issue before the court was whether the trial judge’s failure to direct the jury on the defence of self-defence amounted to a substantial miscarriage of justice. The court also needed to determine whether the use of the sharp instrument was reasonably necessary under section 271 of the Criminal Code. The appellant argued that the trial judge should have directed the jury on self-defence as the complainant had initiated the physical altercation, and that the use of the sharp instrument was justified as a response to the unprovoked assault.

The court examined the evidence and arguments presented by both parties. It found that the trial judge’s failure to direct the jury on self-defence did not constitute a substantial miscarriage of justice, as the evidence did not support the appellant's claim that the complainant initiated the physical altercation. The court further determined that the use of the sharp instrument was not reasonably necessary, as there were other means available to the appellant to defend himself without resorting to such violence. Consequently, the court dismissed the application for leave to appeal against both the sentence and the conviction.

The court granted the application to extend time to appeal but dismissed the application for leave to appeal against sentence and the appeal against conviction. This decision upholds the conviction and sentence imposed by the lower court, affirming that no substantial miscarriage of justice occurred in the appellant’s trial.

Orders

Orders of the court

Grant the application to extend time to appeal1.

Dismiss the application for leave to appeal against sentence2.

Dismiss the appeal against conviction3.

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Franco [2008] QCA 342
PARTIES:	R v FRANCO, Ramiro (applicant/appellant)
FILE NO/S:	CA No 180 of 2008 DC No 575 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction and Sentence
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	31 October 2008
DELIVERED AT:	Brisbane
HEARING DATE:	21 October 2008
JUDGES:	Keane and Holmes JJA and White AJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Grant the application to extend time to appeal1. Dismiss the application for leave to appeal against sentence2. Dismiss the appeal against conviction3.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – POWER TO DISMISS APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE – PARTICULAR MATTERS – the appellant was convicted by a jury of unlawfully wounding the complainant – the wounds were inflicted by an unknown sharp instrument – there is evidence that the wounding occurred only after the complainant aggressively punched the appellant – the learned trial judge did not direct the jury about the defence under s 271 of the Criminal Code of self-defence against unprovoked assault – whether the use of the sharp instrument was “reasonably necessary” within the meaning of the term in s 271 – whether there has been a miscarriage of justice Criminal Code 1899 (Qld), s 271, s 668E Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, cited Glennon v The Queen (1994) 179 CLR 1; [1994] HCA 7, cited R v Ellis[2007] QCA 219, cited R v McNamara[1998] QCA 405, cited R v Ollis and Andersen (1986) 21 A Crim R 256, cited R v Trieu[2008] QCA 28, cited Van Den Hoek v The Queen (1986) 161 CLR 158; [1986] HCA 76, cited Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, cited Wilde v The Queen (1988) 164 CLR 365; [1988] HCA 6, cited
COUNSEL:	R A East for the applicant/appellant M R Byrne for the respondent
SOLICITORS:	Legal Aid (Queensland) for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent