R v JJ; R v JJ; ex parte - [2005] QCA 153

SUPREME COURT OF QUEENSLAND

CITATION:

R v JJ; R v JJ; ex parte A-G [2005] QCA 153

PARTIES:

R
v
JJ
(appellant)

R
v
JJ
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 27 of 2005
CA No 341 of 2004
DC No 13 of 2005
DC No 409 of 2004
DC No 337 of 2004
DC No 252 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction
Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

13 May 2005

DELIVERED AT:

Brisbane

HEARING DATE:

22 April 2005

JUDGES:

McPherson, Williams and Jerrard JJA
Separate reasons for judgment of each member of the Court.

ORDERS:

1. The appeal against conviction is dismissed

2. The Attorney-General’s appeal against the sentences imposed on 17 January 2005 is allowed and the sentences are varied to the following extent:

(a) the sentence imposed on count 1 of indictment no 337 of 2004 is increased from imprisonment for two years to imprisonment for three years;

(b) the order that the other sentences imposed on that date be served concurrently with the sentence of three years in 2(a) is set aside, and it is ordered that those sentences be served cumulatively upon that sentence.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – whether accused had capacity to know he ought not to do the act which constituted the offence – whether conviction on some counts inconsistent with acquittal on other counts – whether trial unfair by reason of disclosure to the jury that the accused had spent time in custody and been charged with other offences – whether judge failed to put defence case fairly

CRIMINAL LAW – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – rape – dangerous operation of vehicle – stealing – wilful damage – accused diagnosed as psychopathic – psychiatric evidence accused is dangerous and presents extremely high risk or re-offending – whether trial judge incorrectly fettered sentencing discretion under s 144 Juvenile Justice Act 1992 (Qld) – whether sentences should have been concurrent

Children’s Services Act 1965 (Qld), s 62, s 63
Criminal Code 1899 (Qld), s 29(2)
Juvenile Justice Act 1992 (Qld), s 144

MacKenzie v The Queen (1996) 190 CLR 348, cited
Makin v Attorney-General for New South Wales [1894] AC 57, cited
Pfennig v The Queen (1995) 182 CLR 461, cited
R v B [1997] QCA 486; CA No 369 of 1997, 6 November 1997, applied
R v J, ex p Attorney-General [2001] QCA 216; CA No 5 of 2001, 1 June 2001, considered
R v Jy, ex p Attorney‑General [1997] 2 Qd R 277; [1996] QCA 404, considered
R v McM CA No 252 of 1986, 20 November 1986, considered
R v P [2000] 2 Qd R 401; [1999] QCA 411; CA No 130…

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.

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Details

Case: [2005] QCA 153
Decision Date: 13 May 2005

CaseChat Overview and Summary

The appeal before the court involved multiple parties, with JJ being the accused in several criminal matters. The dispute encompassed issues related to the capacity of the accused to understand the nature of his actions, the consistency of his convictions, the fairness of the trial due to certain disclosures, and the adequacy of the defence case presentation. The appeal also addressed the sentences imposed, with the Attorney-General seeking an increase based on the risk of re-offending presented by the accused. The Queensland Court of Appeal was the judicial body tasked with resolving these complex legal issues.

The court was required to determine several key legal issues. Firstly, whether the accused had the requisite capacity to understand that he should not commit the acts that led to his conviction. Secondly, the court had to consider if the convictions on some counts were inconsistent with the acquittals on others. Thirdly, the court examined if the trial was rendered unfair by the jury's knowledge of the accused's prior detention and other charges. Lastly, the court needed to assess whether the judge had failed to fairly present the defence case to the jury.

In its reasoning, the court concluded that the appeal against conviction was dismissed, finding no basis to overturn the verdict. Regarding the sentences, the court allowed the Attorney-General's appeal and varied the sentences to reflect the high risk of re-offending. The sentence on count 1 was increased, and the other sentences were ordered to be served cumulatively rather than concurrently. The court held that the trial judge did not incorrectly limit his sentencing discretion and that the sentences should reflect the seriousness of the offences and the risk posed by the accused.

The final orders of the court were that the appeal against conviction was dismissed, and the Attorney-General's appeal against the sentences was allowed. The sentences were varied to increase the term of imprisonment for count 1 and to ensure that the other sentences were served cumulatively rather than concurrently.

Orders

Orders of the court

1. The appeal against conviction is dismissed

2. The Attorney-General’s appeal against the sentences imposed on 17 January 2005 is allowed and the sentences are varied to the following extent:

(a) the sentence imposed on count 1 of indictment no 337 of 2004 is increased from imprisonment for two years to imprisonment for three years;

(b) the order that the other sentences imposed on that date be served concurrently with the sentence of three years in 2(a) is set aside, and it is ordered that those sentences be served cumulatively upon that sentence.

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.

CITATION:	R v JJ; R v JJ; ex parte A-G [2005] QCA 153
PARTIES:	R v JJ (appellant) R v JJ (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 27 of 2005 CA No 341 of 2004 DC No 13 of 2005 DC No 409 of 2004 DC No 337 of 2004 DC No 252 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction Sentence Appeal by A-G (Qld)
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	13 May 2005
DELIVERED AT:	Brisbane
HEARING DATE:	22 April 2005
JUDGES:	McPherson, Williams and Jerrard JJA Separate reasons for judgment of each member of the Court.
ORDERS:	1. The appeal against conviction is dismissed 2. The Attorney-General’s appeal against the sentences imposed on 17 January 2005 is allowed and the sentences are varied to the following extent: (a) the sentence imposed on count 1 of indictment no 337 of 2004 is increased from imprisonment for two years to imprisonment for three years; (b) the order that the other sentences imposed on that date be served concurrently with the sentence of three years in 2(a) is set aside, and it is ordered that those sentences be served cumulatively upon that sentence.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – whether accused had capacity to know he ought not to do the act which constituted the offence – whether conviction on some counts inconsistent with acquittal on other counts – whether trial unfair by reason of disclosure to the jury that the accused had spent time in custody and been charged with other offences – whether judge failed to put defence case fairly CRIMINAL LAW – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – rape – dangerous operation of vehicle – stealing – wilful damage – accused diagnosed as psychopathic – psychiatric evidence accused is dangerous and presents extremely high risk or re-offending – whether trial judge incorrectly fettered sentencing discretion under s 144 Juvenile Justice Act 1992 (Qld) – whether sentences should have been concurrent Children’s Services Act 1965 (Qld), s 62, s 63 Criminal Code 1899 (Qld), s 29(2) Juvenile Justice Act 1992 (Qld), s 144 MacKenzie v The Queen (1996) 190 CLR 348, cited Makin v Attorney-General for New South Wales [1894] AC 57, cited Pfennig v The Queen (1995) 182 CLR 461, cited R v B [1997] QCA 486; CA No 369 of 1997, 6 November 1997, applied R v J, ex p Attorney-General [2001] QCA 216; CA No 5 of 2001, 1 June 2001, considered R v Jy, ex p Attorney‑General [1997] 2 Qd R 277; [1996] QCA 404, considered R v McM CA No 252 of 1986, 20 November 1986, considered R v P [2000] 2 Qd R 401; [1999] QCA 411; CA No 130…