R v Kelly

Case [2006] QCA 467

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kelly [2006] QCA 467

PARTIES:

R
v
KELLY, Robin William
(appellant/applicant)

FILE NO/S:

CA No 175 of 2005
DC No 2233 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction and Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

10 November 2006

DELIVERED AT:

Brisbane

HEARING DATE:

1 September 2006

JUDGES:

McMurdo P, Jerrard JA and Wilson J
Separate reasons for judgment of each member of the Court, McMurdo P and Wilson J concurring as to the orders made, Jerrard JA dissenting

ORDER:

1.   Application to adduce further evidence refused

2.   Appeal against conviction dismissed

3.   Application for leave to appeal against sentence granted and appeal against sentence allowed

4.   The sentence imposed at first instance is varied by substituting a $1,000 fine for the $5,000 fine

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – PARTICULAR MATTERS – OTHER INSTANCES OF INTERFERENCE – appellant/applicant was convicted of willingly and unlawfully killing a dog – whether the trial judge erred in granting leave to the prosecution under s 15(2) of the Evidence Act1977 (Qld) to cross-examine the appellant/applicant about his prior convictions – whether the conduct of the appellant/applicant’s defence case involved imputations on the character of the prosecutor or a prosecution witness sufficient to enliven s 15(2) discretion – inconsistencies in appellant/applicant’s testimony were subjected to effective cross-examination – whether the effective cross-examination made it unnecessary for the prosecution to attack the credibility of the appellant/applicant by reference to his criminal history – whether the trial judge should have withdrawn his permission for the prosecution to cross-examine the appellant/applicant about his prior criminal history after an already effective cross-examination

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – sentenced to four months imprisonment suspended after one month for an operational period of five years, and in addition was fined $5,000 in default of which two months imprisonment, cumulative if served, and allowed six months to pay – whether sentence was manifestly excessive

Evidence Act1977 (Qld), s 15(2)

Browne v Dunn [1893] HL 6 R 67, cited
R v Kalliris [2006] QCA 321; CA No 253 of 2005, 30 August 2006, cited
R v Preston [1909] 1 KB 568, cited
R v SCA [2002] 2 Qd R 70; [2001] QCA 199, cited
Phillips v The Queen (1985) 159 CLR 45, cited
Weiss v The Queen (2005) 80 ALJR 444; [2005] HCA 81, cited

COUNSEL:

A J Rafter SC for the appellant/applicant
R G Martin SC for the respondent

SOLICITORS:

Patrick Murphy for the appellant/applicant
Director of Public Prosecutions (Queensland) for the respondent

  1. McMURDO P:  The appellant, Robin William Kelly, was convicted on 10 June 2005 after a four day jury trial of wilfully and unlawfully killing a dog.  He…

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Details
AGLC
R v Kelly [2006] QCA 467
Case
[2006] QCA 467
Decision Date

CaseChat Overview and Summary

The appellant, Kelly, was convicted of intentionally and unlawfully killing a dog. The prosecution was permitted to cross-examine the appellant about his prior convictions under s 15(2) of the Evidence Act 1977 (Qld). Kelly appealed against his conviction and sentence, arguing that the trial judge erred in allowing the cross-examination and that the sentence imposed was manifestly excessive.

The primary legal issue in the appeal was whether the trial judge erred in granting leave for the prosecution to cross-examine the appellant about his prior convictions. The appellant contended that the conduct of his defence case did not involve imputations on the character of the prosecutor or a prosecution witness sufficient to enliven s 15(2) discretion. The appellant further argued that the inconsistencies in his testimony were already subjected to effective cross-examination, rendering it unnecessary for the prosecution to attack his credibility by reference to his criminal history. The second issue was whether the sentence imposed was manifestly excessive.

The court held that the trial judge did not err in granting leave for the prosecution to cross-examine the appellant about his prior convictions. The court found that the appellant's conduct during his defence did involve imputations on the character of the prosecutor or a prosecution witness, which enlivened s 15(2) discretion. The court further found that the effective cross-examination did not make it unnecessary for the prosecution to attack the appellant's credibility by reference to his criminal history. The court held that the trial judge did not err in allowing the prosecution to cross-examine the appellant about his prior convictions. The court also held that the sentence imposed was manifestly excessive. The appeal against the conviction was dismissed, and the sentence was varied by substituting a $1,000 fine for the $5,000 fine.

Orders

Orders of the court

1. Application to adduce further evidence refused

2. Appeal against conviction dismissed

3. Application for leave to appeal against sentence granted and appeal against sentence allowed

4. The sentence imposed at first instance is varied by substituting a $1,000 fine for the $5,000 fine

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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