R v Jasser - [2004] QCA 14

SUPREME COURT OF QUEENSLAND

CITATION:

R v Jasser [2004] QCA 14

PARTIES:

R
v
JASSER, Higo Omar
(appellant/applicant)

FILE NO/S:

CA No 277 of 2003
DC No 138 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Southport

DELIVERED EX TEMPORE ON:

9 February 2004

DELIVERED AT:

Brisbane

HEARING DATE:

9 February 2004

JUDGES:

de Jersey CJ, Davies JA and Mackenzie J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeal against conviction dismissed
2. Application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - OTHER MATTERS - where appellant claimed trial judge failed to adequately direct the jury on the defence case pursuant to the first limb of s 23 Criminal Code 1899 - where appellant claimed trial judge ought to have left determination of the relevant act to the jury - whether relevant act was the movement of the appellant's arm

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - OTHER MATTERS - whether trial judge erred in not leaving the defence of the second limb of s 23 Criminal Code 1899 to the jury - whether trial judge erred in not leaving the defence of a combination of s 24 and s 271 Criminal Code 1899 to the jury

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENCE - where appellant convicted of unlawful wounding - where appellant sentenced to 21 months imprisonment - whether sentence manifestly excessive

Criminal Code 1899 (Qld), s 23, s 24, s 271

Kaporonovski v R (1973) 133 CLR 209, applied

COUNSEL:

Appellant/applicant appeared on his own behalf
R G Martin for respondent

SOLICITORS:

Appellant/applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for respondent

DAVIES JA: After a three day trial ending on 1 August 2003, the appellant was convicted of unlawfully wounding Michael John Fooks. On 4 August he was sentenced to 21 months imprisonment. He appeals against his conviction and seeks leave to appeal against his sentence.

The events the subject of the appellant's trial and conviction took place at The Drink nightclub, Orchid Avenue, Surfers Paradise in the early hours of 4 February 2001. The appellant and Fooks were strangers. According to Fooks he was standing in the nightclub waiting for his girlfriend to say goodbye to some friends when the appellant approached him from the left and spoke to him in an aggressive manner. Fooks said he did not really take any interest in what the appellant said, but he could tell that the appellant had an aggressive manner from his facial expression.

Fooks said that…

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 Jasser

Details

AGLC: R v Jasser [2004] QCA 14
Case: [2004] QCA 14
Decision Date: 9 February 2004

CaseChat Overview and Summary

In the case of R v Jasser, the appellant sought to appeal his conviction for unlawful wounding, arguing that the trial judge had misdirected the jury regarding the defence case. The appellant contended that the trial judge should have left the determination of the relevant act to the jury, specifically the movement of his arm, under the first limb of section 23 of the Criminal Code 1899. Additionally, he argued that the trial judge failed to leave the defence of the second limb of section 23 and a combination of sections 24 and 271 of the Criminal Code to the jury. The appellant also challenged the sentence of 21 months imprisonment as manifestly excessive.

The court examined whether the trial judge's directions to the jury adequately covered the defence arguments presented by the appellant. The court considered whether the trial judge erred by not leaving the determination of the relevant act to the jury, which was argued to be the movement of the appellant's arm, under the first limb of section 23. Furthermore, the court assessed whether the trial judge correctly left the defence of the second limb of section 23 and a combination of sections 24 and 271 to the jury. The court also evaluated the sentence imposed, determining if it was manifestly excessive given the circumstances of the offence.

The court found that the trial judge had not erred in their directions to the jury, and therefore, the appeal against the conviction was dismissed. The court held that the trial judge's directions were adequate and did not omit any relevant considerations for the jury to make. Consequently, the application for leave to appeal against the sentence was also refused. The court was satisfied that the sentence was not manifestly excessive in the context of the offence.

In conclusion, the court upheld the conviction and the sentence imposed on the appellant. The appeal against the conviction was dismissed, and the application for leave to appeal against the sentence was refused. The court's decision underscored the importance of proper jury directions and the appropriateness of the sentence given the circumstances of the offence.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence refused

Background

Background to the litigation

Full text does not contain this section.

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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CITATION:	R v Jasser [2004] QCA 14
PARTIES:	R v JASSER, Higo Omar (appellant/applicant)
FILE NO/S:	CA No 277 of 2003 DC No 138 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Southport
DELIVERED EX TEMPORE ON:	9 February 2004
DELIVERED AT:	Brisbane
HEARING DATE:	9 February 2004
JUDGES:	de Jersey CJ, Davies JA and Mackenzie J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal against conviction dismissed 2. Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - OTHER MATTERS - where appellant claimed trial judge failed to adequately direct the jury on the defence case pursuant to the first limb of s 23 Criminal Code 1899 - where appellant claimed trial judge ought to have left determination of the relevant act to the jury - whether relevant act was the movement of the appellant's arm CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - OTHER MATTERS - whether trial judge erred in not leaving the defence of the second limb of s 23 Criminal Code 1899 to the jury - whether trial judge erred in not leaving the defence of a combination of s 24 and s 271 Criminal Code 1899 to the jury CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENCE - where appellant convicted of unlawful wounding - where appellant sentenced to 21 months imprisonment - whether sentence manifestly excessive Criminal Code 1899 (Qld), s 23, s 24, s 271 Kaporonovski v R (1973) 133 CLR 209, applied
COUNSEL:	Appellant/applicant appeared on his own behalf R G Martin for respondent
SOLICITORS:	Appellant/applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for respondent