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R v Grimley

R v Grimley

Case [2000] QCA 64 14 March 2000

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SUPREME COURT OF QUEENSLAND

CITATION: R v Grimley [2000] QCA 64

PARTIES: R
v
GRIMLEY, Graham David
(applicant/appellant)

FILE NO/S: CA No 362 of 1999
DC No 7 of 1999

DIVISION: Court of Appeal

PROCEEDING: Appeal against conviction and sentence

ORIGINATING COURT:
District Court at Stanthorpe

DELIVERED ON: 14 March 2000

DELIVERED AT: Brisbane

HEARING DATE: 3 March 2000

JUDGES: Pincus JA, Davies JA, McPherson JA
Joint reasons for judgment of Pincus and Davies JJA; separate reasons of McPherson JA dissenting in part

ORDER:
Appeal against conviction dismissed;

Application for leave to appeal against sentence granted; appeal allowed by substituting a sentence of 1 year and 8 months for the sentence of 2 years and 6 months imposed by the learned sentencing judge.

CATCHWORDS:
CRIMINAL LAW – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – ACCIDENT – GENERALLY – appellant convicted of grievous bodily harm by punching victim and breaking his jaw – appellant described injury as "the accident" – in previous trial said meant "incident" not "accident" – whether defence of accident should have been left to jury

Criminal Code s 23(1)(a), s 23(1)(b)

Falconer v The Queen (1990) 171 CLR 30, discussed
Griffiths (1994) 69 ALJR 77, distinguished
Griffiths CA No 292 of 1993, 20 December 1993, mentioned
Kaporonowski v The Queen (1973) 133 CLR 209, discussed

Taiters, ex parte Attorney-General [1997] 1 Qd R 333, discussed

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – SUMMING-UP – whether possible defence not argued by counsel should have been left to jury

Falconer v The Queen (1990) 171 CLR 30, discussed
Howe (1981) 55 ALJR 5, discussed
Payne [1970] Qd R 260, discussed

Taiters, ex parte Attorney-General [1997] 1 Qd R 333, discussed

West CA No 288 of 1996, 26 November 1996, mentioned

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – whether sentence too heavy

Camm [1999] QCA 101; CA No 431 of 1998, 1 April 1999
Dodd CA No 241 of 1998, 17 September 1998
Partridge CA No 561 of 1996, 18 March 1997

Silvester CA No 101 of 1998, 5 June 1998

COUNSEL: Mr P J Callaghan for the applicant/appellant
Mr R G Martin for the respondent

SOLICITORS: Carew McKimmie for the applicant/appellant
Director of Public Prosecutions (Queensland) for the respondent

PINCUS AND DAVIES JJA: The appellant appeals against his conviction on a charge of having unlawfully done grievous bodily harm to one Zidar and applies for leave to appeal against his sentence. The Crown case was that for no good reason the appellant punched Zidar in the jaw, breaking it. Zidar described the force of the blow as being "Enough to knock me down. Break me jaw in two places". The medical evidence was that the injury was consistent with Zidar's description of the way it was sustained.

Police came to the caravan park where this incident occurred and interviewed the appellant who told them, according to the Crown evidence, that he hit "the guy…

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 Grimley

Details

AGLC: R v Grimley [2000] QCA 64
Case: [2000] QCA 64
Decision Date: 14 March 2000

CaseChat Overview and Summary

The appellant, Grimley, was convicted of causing grievous bodily harm by punching a victim and breaking his jaw. The matter was brought to the court on appeal against the conviction and the sentence. The court had to determine whether the defence of accident should have been left to the jury and whether the sentence imposed was appropriate.

The legal issue before the court was whether the defence of accident should have been left to the jury. The appellant had previously stated that when he referred to the injury as "the accident," he meant "incident" rather than "accident." The court had to decide whether this statement should have been left to the jury to determine if the appellant had an honest and reasonable belief that the incident was accidental. The court found that the defence of accident was not available to the appellant as a matter of law and should not have been left to the jury.

The court held that the appellant's previous statement did not provide an honest and reasonable belief that the incident was accidental. The court found that the appellant had intentionally punched the victim and that the defence of accident was not applicable. The appeal against the conviction was dismissed. However, the court granted the application for leave to appeal against the sentence. The appeal against the sentence was allowed, and a sentence of 1 year and 8 months was substituted for the sentence of 2 years and 6 months imposed by the learned sentencing judge.

The court's final orders were that the appeal against the conviction was dismissed, and the application for leave to appeal against the sentence was granted. The appeal against the sentence was allowed, and a sentence of 1 year and 8 months was substituted for the sentence of 2 years and 6 months imposed by the learned sentencing judge.

Orders

Orders of the court

Appeal against conviction dismissed;

Application for leave to appeal against sentence granted; appeal allowed by substituting a sentence of 1 year and 8 months for the sentence of 2 years and 6 months imposed by the learned sentencing judge.

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 Grimley [2000] QCA 64

Most Recent Citation

Director of Public Prosecutions v Lawson and Ors (Ruling No.5) [2012] VSC 531

Cases citing this decision · 9 of 9 shown

R v Thompson
[2019] QCA 209 Para 31

…that the applicant’s sentence is manifestly excessive in all the circumstances.[37] [31][2014] QCA 342. [32][2014] QCA 276. [33][2003] QCA 82. [34][2000] QCA 64. [35][2003] QCA 286. [36]AOS paragraph 36. [37]Ibid paragraph 35.…
R v Green
[2013] QCA 24 Para 1

…The appellant argued that the sentence was excessive having regard to: R v D’Arcy [2001] QCA 20; R v Grimley [2000] QCA 64; R v O’Rourke [2003] QCA 220; R v Silvester [1998] QCA 194; R v Katsidis [2003] QCA 82. The decisions to which the appellant referred are readily distinguishable. In R v D’Arcy , the offende…
Director of Public Prosecutions v Lawson and Ors (Ruling No.5)
[2012] VSC 531

…[12][2000] QCA 64.…
R v Anderson
[2012] QCA 264 Para 1

…. He had a solid work history, had formed a relationship and had two young dependents. [1][2000] QCA 141. [2][2003] QCA 286. [3][2003] QCA 82. [4][2000] QCA 64.…
R v Katsidis
[2003] QCA 82 Para 1

…bliged to establish in order to exclude this limb of the defence of accident, now contained in s 23(1)(b) of the Criminal Code . See also R v Grimley [2000] QCA 64; CA No 362 of 1999, 14 March 2000 at [9], [17].…
R v Hudson; ex parte
[2002] QCA 239

…The Attorney referred also to the matter of Grimley [2000] QCA 64, in which Mr Grimley was convicted after a trial of having unlawfully done grievous bodily harm. He was 46 years old, and had one prior conviction for assault occasioning bodily harm. He had punched the complainant on the complainant's jaw, breaki…
R v Guillard
[2002] QCA 27 Para 1

…s no suggestion (or inference available) that a fall, if one happened, produced any further injury. [2]Cf Howe (1980) 55 ALJR 5, 7; R v Grimley [2000] QCA 64 para 8.…
R v Skerritt
[2001] QCA 31 Para 2

…In Grimley [2000] QCA 64; CA 362 of 1999, 14 March 2000, Pincus and Davies JJA, after referring to Payne and Howe , said one way of testing whether a defence is fairly raised on the evidence is by attempting to construct a sensible direction on the basis of the evidence given. That, to my mind, is a relevant tes…
R v Burns
[2000] QCA 201 Para 1

…range, but periods of as little as two years or less are not unknown depending on the seriousness of the injury and the pain involved: cf R v Grimley [2000] QCA 64; CA 362 of 1999; March 14, 2000.…

View all 9 citing cases →

Cases cited in this decision · 5 of 5 shown

Howe v The Queen
[2016] NZHC 926

…In Howe (1980) 55 ALJR 5 at 7, where it was held that a particular defence should have been put to the jury, the High Court said: "The essential question here is whether the trial judge should have perceived that an issue based on s 247 was fairly raised on the evidence".…
R v Camm
[1999] QCA 101 Para 1

…es of Partridge (CA No 561 of 1996, 18 March 1997), Silvester (CA No 101 of 1998, 5 June 1998), Dodd (CA No 241 of 1998, 17 September 1998), and Camm [1999] QCA 101; (CA No 431 of 1998, 1 April 1999) were discussed before us. Silvester and Dodd involved injuries similar to those in the present case and the senten…
Griffiths v The Queen
[1994] HCA 55 Para 1

…A case which might be thought to have some resemblance to the present is Griffiths (1994) 69 ALJR 77. There the Crown case was that Griffiths shot another person in the head and, to prove that, reliance was placed substantially upon evidence of people to whom, according to the evidence, Griffiths admitted having kil…
R v Falconer
[1990] HCA 49 Para 1

…uses him if it occurred independently of the exercise of his will; or, in other words, if it was not a "voluntary" act, which in Falconer v The Queen (1990) 171 CLR 30, 40, was said to mean or involve "a choice, consciously made, to do an act of the kind done". To require a direction to that effect, the issue of vol…
Kaporonovski v The Queen
[1973] HCA 35 Para 1

…either s 23(1)(a) or s 23(1)(b) of the Criminal Code. Section 23(1)(a) assumes that some act has been done by the accused ( Kaporonowski v The Queen (1973) 133 CLR 209, 226-227) and excuses him if it occurred independently of the exercise of his will; or, in other words, if it was not a "voluntary" act, which in Fal…

Legislation cited in this decision · 0

No legislation cited in this case.

CITATION:	R v Grimley [2000] QCA 64
PARTIES:	R v GRIMLEY, Graham David (applicant/appellant)
FILE NO/S:	CA No 362 of 1999 DC No 7 of 1999
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against conviction and sentence
ORIGINATING COURT:	District Court at Stanthorpe
DELIVERED ON:	14 March 2000
DELIVERED AT:	Brisbane
HEARING DATE:	3 March 2000
JUDGES:	Pincus JA, Davies JA, McPherson JA Joint reasons for judgment of Pincus and Davies JJA; separate reasons of McPherson JA dissenting in part
ORDER:	Appeal against conviction dismissed; Application for leave to appeal against sentence granted; appeal allowed by substituting a sentence of 1 year and 8 months for the sentence of 2 years and 6 months imposed by the learned sentencing judge.
CATCHWORDS:	CRIMINAL LAW – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – ACCIDENT – GENERALLY – appellant convicted of grievous bodily harm by punching victim and breaking his jaw – appellant described injury as "the accident" – in previous trial said meant "incident" not "accident" – whether defence of accident should have been left to jury Criminal Code s 23(1)(a), s 23(1)(b) Falconer v The Queen (1990) 171 CLR 30, discussed Griffiths (1994) 69 ALJR 77, distinguished Griffiths CA No 292 of 1993, 20 December 1993, mentioned Kaporonowski v The Queen (1973) 133 CLR 209, discussed Taiters, ex parte Attorney-General [1997] 1 Qd R 333, discussed CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – SUMMING-UP – whether possible defence not argued by counsel should have been left to jury Falconer v The Queen (1990) 171 CLR 30, discussed Howe (1981) 55 ALJR 5, discussed Payne [1970] Qd R 260, discussed Taiters, ex parte Attorney-General [1997] 1 Qd R 333, discussed West CA No 288 of 1996, 26 November 1996, mentioned CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – whether sentence too heavy Camm [1999] QCA 101; CA No 431 of 1998, 1 April 1999 Dodd CA No 241 of 1998, 17 September 1998 Partridge CA No 561 of 1996, 18 March 1997 Silvester CA No 101 of 1998, 5 June 1998
COUNSEL:	Mr P J Callaghan for the applicant/appellant Mr R G Martin for the respondent
SOLICITORS:	Carew McKimmie for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent