SUPREME COURT OF QUEENSLAND
CITATION:
R v Graham [2016] QCA 73
PARTIES:
R
v
GRAHAM, Bradley Edward
(appellant)FILE NO/S:
CA No 72 of 2015
DC No 151 of 2015DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
District Court at Brisbane – Date of Conviction: 26 March 2015DELIVERED ON:
1 April 2016
DELIVERED AT:
Brisbane
HEARING DATE:
27 November 2015
JUDGES:
Gotterson and Philip McMurdo JJA and Jackson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDERS:
1. The jury’s finding of a circumstance of aggravation of the appellant’s offence of burglary, being that he used actual violence, be set aside.
2. The appeal against convictions be otherwise dismissed.
3. Set aside the sentence imposed for the offence of burglary.
4. Remit the matter to the District Court of Queensland for the appellant to be resentenced upon the conviction of burglary.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where, after a trial by jury, the appellant was convicted of one count of burglary with the aggravating circumstances of being in company and using actual violence and one count of extortion and acquitted on one count of assault occasioning bodily harm and one count of common assault – where the appellant contends there is an irreconcilable inconsistency between his convictions for burglary using actual violence and extortion where he was acquitted on the assault charges – where at trial, the prosecution particularised its case, and the trial judge so directed, that the aggravating circumstance of actual violence could be proved either by proof of the appellant’s violence or proof of violence by the appellant’s co-offender which the appellant assisted or aided by virtue of s 7(1)(c) Criminal Code – where the trial judge further directed that, upon proof of the appellant’s offence of robbery under s 419(1) Criminal Code, the jury could be satisfied of the appellant’s use of actual violence by the operation of either s 7(1)(a) or s 7(1)(c) Criminal Code – where the jury apparently reasoned according to s 7(1)(c) and concluded that the appellant used actual violence because he aided his co-offender to use actual violence in the commission of an offence of burglary – where the appellant contends that s 7(1)(c) could not be used in such a way – whether the verdicts were inconsistent and irreconcilable
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of one count of burglary with the aggravating circumstances of being in company and using actual violence and one count of extortion – where the appellant contends that it was not open on the evidence for the jury to conclude that he went to the complainant’s house intending to do or threaten violence – where it was clear from the evidence that the appellant went to the complainant’s premises…
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- R v Graham [2016] QCA 73
- Case
- [2016] QCA 73
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CaseChat Overview and Summary
The court examined whether there was an inconsistency in the jury's verdicts, particularly in relation to the appellant's convictions for burglary with actual violence and extortion, and his acquittal on the assault charges. The court also considered whether the jury's finding that the appellant intended to do or threaten violence was unreasonable or insupportable on the evidence, given that it was clear from the evidence that the appellant went to the complainant’s premises to reclaim property and take the complainant’s car. The court further assessed whether the admission of certain prejudicial statements in the appellant’s police interview amounted to a miscarriage of justice.
The court concluded that while there was an inconsistency in the jury’s findings, it was not irreconcilable. The court found that the jury could have reasonably concluded that the appellant used actual violence by aiding his co-offender. The court also held that the jury’s finding that the appellant intended to do or threaten violence was not unreasonable or insupportable on the evidence. However, the court found that the jury’s finding of the aggravating circumstance of actual violence was based on an improper application of the law. The court held that the jury should not have been directed that the appellant’s use of actual violence could be proved by aiding his co-offender's violence. Consequently, the court set aside the jury’s finding of the aggravating circumstance of actual violence, and remitted the matter to the District Court of Queensland for the appellant to be resentenced on the burglary conviction.
The court dismissed the appeal against the convictions otherwise, and set aside the sentence imposed for the offence of burglary. The matter was remitted to the District Court of Queensland for the appellant to be resentenced on the burglary conviction. The convictions for extortion and the acquittal on the assault charges remained unaffected.
Orders
Orders of the court
1. The jury’s finding of a circumstance of aggravation of the appellant’s offence of burglary, being that he used actual violence, be set aside.
2. The appeal against convictions be otherwise dismissed.
3. Set aside the sentence imposed for the offence of burglary.
4. Remit the matter to the District Court of Queensland for the appellant to be resentenced upon the conviction of burglary.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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