R v Kay

Case [2012] QCA 327

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kay [2012] QCA 327

PARTIES:

R
v
KAY, Anthony Lee
(appellant/applicant)

FILE NO/S:

CA No 124 of 2012
CA No 293 of 2011
SC No 364 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:


Supreme Court at Brisbane

DELIVERED ON:

30 November 2012

DELIVERED AT:

Brisbane

HEARING DATE:

20 November 2012

JUDGES:

Chief Justice and Muir and Fraser JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal dismissed.

2. Application refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where appellant convicted after trial of unlawfully attempting to kill complainant – where appellant and complainant were acquaintances – where appellant visited complainant’s property whilst intoxicated – where appellant and complainant had altercation and discussion about drugs before appellant “king-hit” complainant – where this took complainant off guard, causing him to soil himself – where complainant told appellant to leave property and went for shower – where complainant returned to kitchen after shower and was stabbed three times to the back of his head by appellant – where complainant then stabbed in the stomach and chest by appellant – where complainant managed to seize knife – where earlier that day appellant was attacked and, as a result, was interviewed at his home by police – where during recorded interview appellant made various statements that he, in effect, took care of his own business without the assistance of police – where interview also included threats to stab the complainant – where appellant’s wife made various statements during interview – where appellant submitted that the primary judge erred in failing to give a propensity or bad character warning in relation to the recorded interview –whether primary judge should have given jury a propensity or bad character direction – whether verdict unreasonable

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where appellant submitted conviction unreasonable and cannot be supported by the evidence – where appellant submitted that evidence did not support intention to kill, but to only stab or shive – where appellant contended his telephone call to police and request for medical assistance suggested no intention to kill – where appellant submitted conviction unreasonable and cannot be supported by the evidence – whether verdict unreasonable

CRIMINAL LAW – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where appellant convicted after trial of unlawfully attempting to kill complainant – where appellant sentenced to 14 years imprisonment – where appellant submitted sentence manifestly excessive – where appellant submitted primary judge erred in formulating a sentence to deal with the problem posed by appellant’s behaviour rather than a sentence that punished the actual offence committed – whether sentence manifestly excessive – whether judge erred in sentencing discretion

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Details
AGLC
R v Kay [2012] QCA 327
Case
[2012] QCA 327
Decision Date

CaseChat Overview and Summary

The appellant, who had been convicted of unlawfully attempting to kill the complainant, appealed against his conviction and sentence. The dispute was heard by the court, which had to decide on several legal issues. One of the primary issues was whether the primary judge should have directed the jury on the potential propensity or bad character of the appellant based on statements made during a recorded interview. The appellant argued that these statements were prejudicial and should have warranted a warning. Another significant issue was whether the verdict was unreasonable or unsupported by the evidence, particularly regarding the appellant's intention to kill or merely to stab the complainant. Additionally, the court considered whether the sentence of 14 years imprisonment was manifestly excessive or inadequate.

The court, in its reasoning, found that the primary judge did not err in not providing a propensity or bad character warning as the statements in question were relevant to the context of the crime and did not unduly prejudice the appellant. The court held that the evidence was sufficient to support the verdict of an attempt to unlawfully kill, despite the appellant's arguments that the intention was merely to stab or shive the complainant. The court also dismissed the argument that the sentence was manifestly excessive, finding that the primary judge had appropriately considered the nature of the offence and the appellant's history of violent behaviour in formulating the sentence.

Ultimately, the appeal was dismissed, and the application for a new trial was refused. The court confirmed the conviction and the 14-year imprisonment sentence, holding that the verdict was reasonable and supported by the evidence, and that the sentence was not manifestly excessive.

Orders

Orders of the court

1. Appeal dismissed.

2. Application refused.

Background

Background to the litigation

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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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