R v Kajackas - [2012] QCA 328

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kajackas [2012] QCA 328

PARTIES:

R
v
KAJACKAS, Egidijus
(appellant/applicant)

FILE NO/S:

CA No 166 of 2012
DC No 1991 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

Orders delivered ex tempore on 22 November 2012
Reasons delivered on 30 November 2012

DELIVERED AT:

Brisbane

HEARING DATE:

22 November 2012

JUDGES:

Chief Justice, Fraser JA and Boddice J
Judgment of the Court

ORDERS:

Orders delivered ex tempore on 22 November 2012:

1. Leave given to amend notice of appeal to include a new ground of appeal, in the terms of paragraph 6 of submissions.

2. Appeal against conviction allowed.

3. Verdict of acquittal entered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where appellant convicted after trial of unlawfully doing grievous bodily harm – where Crown case at trial was appellant and complainant had altercation in nightclub and continued outside nightclub where appellant felled complainant with punch and then kicked complainant in face – where issue at trial was whether appellant was offender – where discrepancies in identification evidence – where no eyewitness identified appellant when shown photograph – whether it was open to jury to be satisfied beyond reasonable doubt that appellant was guilty

Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13, considered
Douglass v The Queen (2002) 86 ALJR 1086; [2012] HCA 34, cited
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited

COUNSEL:

A J Glynn SC for the appellant/applicant
V A Loury for the respondent

SOLICITORS:

Robertson O’Gorman for the appellant/applicant
Director of Public Prosecutions (Queensland) for the respondent

THE COURT: The appellant appealed against his conviction after a trial in May 2012 that he unlawfully did grievous bodily harm. After hearing argument in the appeal on 22 November 2012, the Court ordered that the appeal be allowed and that a verdict of acquittal be entered. These are the reasons of the Court for those orders.

The Crown case at the trial was that in the early hours of 19 December 2010 the appellant and the complainant, who were previously unknown to each other, had a disagreement in a nightclub in Wickham Street, Fortitude Valley, during which the complainant fell to the floor; they then left the nightclub and wrestled with each other on the footpath in front of the nightclub; after moving further down the street, the appellant felled the complainant with a punch; and the appellant then kicked the complainant in the face. There was no challenge to the evidence of the Crown witnesses who described a man kicking the complainant in the face. Nor was it in issue that the kick caused the complainant serious injuries amounting to grievous bodily harm. The only real issue at trial…

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 Kajackas

Details

AGLC: R v Kajackas [2012] QCA 328
Case: [2012] QCA 328
Decision Date: 22 November 2012

CaseChat Overview and Summary

The appellant in this case was convicted of unlawfully causing grievous bodily harm following a trial. The respondent appealed the conviction to the Court of Appeal, arguing that the verdict was unreasonable given the evidence presented at trial. The appeal was heard by a Full Court comprising of three judges.

The primary legal issue for the Court was whether it was open to the jury to be satisfied beyond reasonable doubt that the appellant was the person who committed the offence. The Court noted that the Crown's case relied heavily on identification evidence, which was inconsistent and unreliable. There were discrepancies in the identification evidence, and no eyewitness identified the appellant when shown a photograph. The Court found that the identification evidence was not reliable enough to support a conviction.

The Court held that the verdict was unreasonable and that it was not open to the jury to be satisfied beyond reasonable doubt that the appellant was the offender. The Court found that the identification evidence was not sufficient to support a conviction, and that the appellant's conviction should be quashed. The Court allowed the appeal and entered a verdict of acquittal. The Court also granted leave to amend the notice of appeal to include a new ground of appeal.

Orders

Orders of the court

Orders delivered ex tempore on 22 November 2012:

1. Leave given to amend notice of appeal to include a new ground of appeal, in the terms of paragraph 6 of submissions.

2. Appeal against conviction allowed.

3. Verdict of acquittal entered.

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 Kajackas [2012] QCA 328
PARTIES:	R v KAJACKAS, Egidijus (appellant/applicant)
FILE NO/S:	CA No 166 of 2012 DC No 1991 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	Orders delivered ex tempore on 22 November 2012 Reasons delivered on 30 November 2012
DELIVERED AT:	Brisbane
HEARING DATE:	22 November 2012
JUDGES:	Chief Justice, Fraser JA and Boddice J Judgment of the Court
ORDERS:	Orders delivered ex tempore on 22 November 2012: 1. Leave given to amend notice of appeal to include a new ground of appeal, in the terms of paragraph 6 of submissions. 2. Appeal against conviction allowed. 3. Verdict of acquittal entered.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where appellant convicted after trial of unlawfully doing grievous bodily harm – where Crown case at trial was appellant and complainant had altercation in nightclub and continued outside nightclub where appellant felled complainant with punch and then kicked complainant in face – where issue at trial was whether appellant was offender – where discrepancies in identification evidence – where no eyewitness identified appellant when shown photograph – whether it was open to jury to be satisfied beyond reasonable doubt that appellant was guilty Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13, considered Douglass v The Queen (2002) 86 ALJR 1086; [2012] HCA 34, cited M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited
COUNSEL:	A J Glynn SC for the appellant/applicant V A Loury for the respondent
SOLICITORS:	Robertson O’Gorman for the appellant/applicant Director of Public Prosecutions (Queensland) for the respondent