R v Kimmins - [2006] QCA 438

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kimmins [2006] QCA 438

PARTIES:

R
v
KIMMINS, Clinton Phillip
(appellant/applicant)

FILE NO/S:

CA No 224 of 2006
DC No 60 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

3 November 2006

DELIVERED AT:

Brisbane

HEARING DATE:

24 October 2006

JUDGES:

Keane JA, White and Philip McMurdo JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – the appellant/applicant was convicted of unlawfully wounding a person – the appellant/applicant appeals against conviction – the trial judge told the jury if they returned a verdict of guilty they would be asked to return special verdicts – the jury were asked whether the guilty verdict related to the neck wound and the back wound to the complainant – the jury found the guilty verdict only related to the back wound – self-defence was not excluded in relation to the first wound to the neck but was excluded for the second wound to the back – whether there is no rational basis for reconciling these conclusions by the jury and whether the conviction is unsafe and unsatisfactory

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERALLY – whether the trial judge erred in seeking special verdicts – whether the trial judge erred in directing the jury to distinguish between the wound to the neck and the wound to the back in relation to self-defence under s 271(1) and s 272 of the Criminal Code1899 (Qld)

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – The appellant/applicant was sentenced to 18 months imprisonment suspended after six months for an operational period of two years – the appellant/applicant applies for leave to appeal against sentence – whether the sentence was manifestly excessive, not by the imposition of a head sentence of 18 months, but by that term not being wholly suspended or suspended after a shorter period than six months

Criminal Code1899 (Qld), s 271, s 271(1), s 272

R v Hays; ex parte A-G [1999] QCA 443; CA No 271 of 1999, 29 October 1999, cited
R v Young [2004] QCA 84; CA No 361 of 2003, CA No 382 of 2003, 26 March 2004, cited

COUNSEL:

A J Kimmins for the appellant/applicant
C W Heaton for the respondent

SOLICITORS:

Price & Roobottom for the appellant/applicant
Director of Public Prosecutions (Queensland) for the…

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 Kimmins

Details

AGLC: R v Kimmins [2006] QCA 438
Case: [2006] QCA 438
Decision Date: 3 November 2006

CaseChat Overview and Summary

The appellant appealed against his conviction for unlawfully wounding a person, contending that the verdict was unreasonable or insupportable and that the trial judge misdirected the jury. The appeal was heard in the Queensland Court of Appeal. The appellant's main arguments were that there was no rational basis for the jury's conclusion that the guilty verdict only related to the wound to the back, and that the trial judge erred in directing the jury to distinguish between the wounds in relation to self-defence under the Criminal Code.

The court examined whether the verdict was unreasonable or insupportable, considering whether the jury's conclusions on self-defence could be reconciled. It found that there was a rational basis for the jury's conclusions, as self-defence was not excluded for the wound to the neck, but was excluded for the wound to the back. The court also considered whether the trial judge erred in seeking special verdicts and directing the jury to distinguish between the wounds. The court concluded that the trial judge's directions were not erroneous.

Additionally, the appellant applied for leave to appeal against his sentence, arguing that it was manifestly excessive. The court found that the sentence was not manifestly excessive, and dismissed the application for leave to appeal. The appeal against conviction and the application for leave to appeal against sentence were both dismissed.

The court's decision affirmed the appellant's conviction and sentence, finding no grounds for appeal. The jury's verdict and the trial judge's directions were upheld, and the appellant's application for leave to appeal against sentence was dismissed.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence dismissed

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Kimmins [2006] QCA 438
PARTIES:	R v KIMMINS, Clinton Phillip (appellant/applicant)
FILE NO/S:	CA No 224 of 2006 DC No 60 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	3 November 2006
DELIVERED AT:	Brisbane
HEARING DATE:	24 October 2006
JUDGES:	Keane JA, White and Philip McMurdo JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal against conviction dismissed 2. Application for leave to appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – the appellant/applicant was convicted of unlawfully wounding a person – the appellant/applicant appeals against conviction – the trial judge told the jury if they returned a verdict of guilty they would be asked to return special verdicts – the jury were asked whether the guilty verdict related to the neck wound and the back wound to the complainant – the jury found the guilty verdict only related to the back wound – self-defence was not excluded in relation to the first wound to the neck but was excluded for the second wound to the back – whether there is no rational basis for reconciling these conclusions by the jury and whether the conviction is unsafe and unsatisfactory CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERALLY – whether the trial judge erred in seeking special verdicts – whether the trial judge erred in directing the jury to distinguish between the wound to the neck and the wound to the back in relation to self-defence under s 271(1) and s 272 of the Criminal Code1899 (Qld) CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – The appellant/applicant was sentenced to 18 months imprisonment suspended after six months for an operational period of two years – the appellant/applicant applies for leave to appeal against sentence – whether the sentence was manifestly excessive, not by the imposition of a head sentence of 18 months, but by that term not being wholly suspended or suspended after a shorter period than six months Criminal Code1899 (Qld), s 271, s 271(1), s 272 R v Hays; ex parte A-G [1999] QCA 443; CA No 271 of 1999, 29 October 1999, cited R v Young [2004] QCA 84; CA No 361 of 2003, CA No 382 of 2003, 26 March 2004, cited
COUNSEL:	A J Kimmins for the appellant/applicant C W Heaton for the respondent
SOLICITORS:	Price & Roobottom for the appellant/applicant Director of Public Prosecutions (Queensland) for the…