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R v Graham

R v Graham

Case [2016] QCA 73 1 April 2016

Appeal

Aggravated & Exemplary Damages

Improper Admission or Rejection of Evidence

Verdict Unreasonable or Insupportable Having Regard to Evidence

Criminal Law

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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 2015

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 26 March 2015

DELIVERED 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 made

ORDERS:

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…

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 Graham

Details

AGLC: R v Graham [2016] QCA 73
Case: [2016] QCA 73
Decision Date: 1 April 2016

CaseChat Overview and Summary

In the matter of R v Graham, 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. He was acquitted on one count of assault occasioning bodily harm and one count of common assault. The appellant appealed against his convictions, arguing there was an irreconcilable inconsistency between his convictions for burglary and extortion and his acquittal on the assault charges. Additionally, the appellant argued that the jury's finding that he intended to do or threaten violence was unreasonable or insupportable on the evidence, and that there was a miscarriage of justice from the improper admission of certain evidence. The court considered these issues in light of the evidence presented at trial.

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

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.

Citations

AGLC Citation

R v Graham [2016] QCA 73

Most Recent Citation

R v KAR [2018] QCA 211

Cases citing this decision · 6 of 6 shown

South Australia Police v Hill
[2022] SASCA 22

…ht [1916] 2 KB 441; R v Clark (1820) 1 Brod & B 473; R v Courtie [1984] AC 463; R v Elrington (1861) 1 B & S; R v Emden (1808) 9 East 437; R v Graham [2016] QCA 73; R v Hietanen (1989) 51 SASR 510; R v Miles (1890) 24 QBD 423; R v O’Loughlin, ex parte Ralphs (1971) 1 SASR 219; R v Sumner; R v Fitzgerald (2013) 1…
R v Crowden and Lambert
[2021] QSC 252 Para 11

…ription of “vicious lawless associate” and, if relevant, “office bearer”.[7] In this regard, I adopt the analysis of McMurdo JA in R v Graham [2016] QCA 73 at [40]-[45], to conclude that although a circumstance of aggravation (such as, relevantly here, the VLAD allegations) may appear as an allegation in the ind…
R v GBE
[2018] QCA 345

…rlow (1997) 188 CLR 1; [1997] HCA 19, applied R v Graham [2017] 1 Qd R 236; [2016] QCA 73 , distinguished R v KAR & Ors [2018] QCA 211 , applied R v Nagy [2004] 1 Qd R 63; [2003] QCA 175 , cited COUNSEL: A W Collins for the applicant M R Byrne QC for the respondent SOLICITORS: Legal Aid Queensland for the applic…
R v KAR
[2018] QCA 211

…1) 147 CLR 383; [1981] HCA 31, considered R v Graham [2017] 1 Qd R 236; [2016] QCA 73 , distinguished R v GV [2006] QCA 394 , applied R v McCormack [1981] VR 104; [1981] VicRp 11, considered R v Pangilinan [2001] 1 Qd R 56; [1999] QCA 528 , cited R v Phillips and Lawrence [1967] Qd R 237, applied R v Poynter, No…
R v NEOCLEOUS
[2017] SASCFC 162

…7; R v Formhals [2014] 1 WLR 2219; Tukuafu v R [2014] VSCA 345; PA v R (2015) 253 A Crim R 154; GW v The Queen (2015) 306 FLR 104; R v Graham [2016] QCA 73; R v Russo [2017] SASCFC 78, discussed.…
R v HXY
[2017] QSC 108 Para 24

…he view that it was “apparently clear that a circumstance of aggravation is not a constituent part of the offence itself”.[8] [7] [2016] QCA 73 at [43]-[45]. [8] See at [53] and see also the discussion by his Honour of R v Barlow (1997) 188 CLR 1 at [48]-[53] of R v Graham .…

View all 6 citing cases →

Cases cited in this decision · 5 of 5 shown

R v DAL
[2005] QCA 281 Para 29

…sistency between the verdict of acquittal on count 3 and his convictions on counts 1 and 2. [3] Osland v The Queen (1998) 197 CLR 316, 406; R v DAL [2005] QCA 281, [8] per McPherson JA, [23] per Keane JA.…
Osland v The Queen
[1998] HCA 75 Para 29

…e confined to the suggested inconsistency between the verdict of acquittal on count 3 and his convictions on counts 1 and 2. [3] Osland v The Queen (1998) 197 CLR 316, 406; R v DAL [2005] QCA 281, [8] per McPherson JA, [23] per Keane JA.…
R v Barlow
[1997] HCA 19

…(1996) 190 CLR 348; [1996] HCA 35, cited R v Barlow (1997) 188 CLR 1; [1997] HCA 19, considered R v De Simoni (1981) 147 CLR 383; [1981] HCA 31, cited R v Phillips and Lawrence [1967] Qd R 237, considered R v Wyles, ex parte Attorney-General [1977] Qd R 169, distinguished COUNSEL: M C Chowdhury for the appellant…
Mackenzie v The Queen
[1996] HCA 35

…), s 8, s 419, s 564, s 575 Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited R v Barlow (1997) 188 CLR 1; [1997] HCA 19, considered R v De Simoni (1981) 147 CLR 383; [1981] HCA 31, cited R v Phillips and Lawrence [1967] Qd R 237, considered R v Wyles, ex parte Attorney-General [1977] Qd R 169, dist…
R v De Simoni
[1981] HCA 31

…88 CLR 1; [1997] HCA 19, considered R v De Simoni (1981) 147 CLR 383; [1981] HCA 31, cited R v Phillips and Lawrence [1967] Qd R 237, considered R v Wyles, ex parte Attorney-General [1977] Qd R 169, distinguished COUNSEL: M C Chowdhury for the appellant D C Boyle for the respondent SOLICITORS: Legal Aid Queensla…

Legislation cited in this decision · 0

No legislation cited in this case.

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 2015
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 26 March 2015
DELIVERED 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 made
ORDERS:	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…