R v Kingston - [2008] QCA 193

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kingston [2008] QCA 193

PARTIES:

R
v
KINGSTON, Allan James

(appellant)

FILE NO/S:

CA No 89 of 2007
DC No 2978 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

18 July 2008

DELIVERED AT:

Brisbane

HEARING DATE:

9 July 2008

JUDGES:

de Jersey CJ, Keane JA and Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Appeal against conviction dismissed1.

Application for leave to appeal against sentence refused2.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where evidence of an admission by the appellant to two police officers was led at the trial – where the admission was not tape-recorded – where the police officers did not administer any warning prior to the admission – whether the evidence was admissible under s 436(3) of the Police Powers and Responsibilities Act 2000 (Qld)

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where evidence of prior acts of violence allegedly committed by the appellant against the complainant was led at the trial – whether this evidence was "relevant evidence" within the terms of s 132B of the Evidence Act 1977 (Qld)

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – where the appellant was sentenced to 10 months imprisonment for one count of assault occasioning bodily harm committed against a 63 year old woman – whether the sentence imposed was in the circumstances manifestly excessive

Criminal Code Act 1899 (Qld), s 339(1)
Evidence Act 1977 (Qld), s 132B
Police Powers and Responsibilities Act 2000 (Qld), s 415, s 431, s 436(3), s 437

HML v The Queen (2008) 82 ALJR 723; [2008] HCA 16, applied
R v Chevathen & Dorrick (2001) 122 A Crim R 441; [2001] QCA 337, cited
R v Etherington (1982) 32 SASR 230, cited
R v Garner (1963) 81 WN (Pt 1) (NSW) 120, cited
R v LR [2006] 1 Qd R 435; [2005] QCA 368, cited
R v Ward[1998] QCA 329, distinguished

COUNSEL:

The appellant appeared on his own behalf
G P Cash for the respondent

SOLICITORS:

The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

JERSEY CJ: de I have had the advantage of reading the reasons for judgment of Keane JA. I agree with the orders proposed by His Honour, and with his reasons.

KEANE JA:
On 21 March 2007, the appellant was convicted upon the verdict of a jury of one count of assault occasioning…

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 Kingston

Details

AGLC: R v Kingston [2008] QCA 193
Case: [2008] QCA 193
Decision Date: 18 July 2008

CaseChat Overview and Summary

The appeal in R v Kingston concerned the conviction and sentence of the appellant for assault occasioning bodily harm against a 63-year-old woman. The appeal was heard by the Queensland Court of Appeal, which had to determine whether the trial court had erred in admitting certain evidence and whether the sentence was manifestly excessive. The appellant contested the admissibility of an unrecorded admission made to police officers and evidence of prior acts of violence against the complainant. Additionally, the appellant sought to appeal against the severity of the 10-month imprisonment sentence imposed.

The court was required to decide whether the admission made to police officers without a warning and without being tape-recorded was admissible under section 436(3) of the Police Powers and Responsibilities Act 2000 (Qld). The court also needed to determine if the evidence of prior acts of violence was relevant within the terms of section 132B of the Evidence Act 1977 (Qld). Furthermore, the court had to assess whether the sentence imposed on the appellant for the assault occasioning bodily harm was manifestly excessive.

The Queensland Court of Appeal dismissed the appeal against conviction, holding that the evidence in question was properly admitted. The court found that the unrecorded admission was admissible as it was not necessary for the admission to be tape-recorded to be considered reliable. The court also concluded that the evidence of prior acts of violence was relevant to the case, as it helped to establish the appellant's intent and the context of the assault. Regarding the sentence, the court refused the application for leave to appeal against the sentence, finding that it was not manifestly excessive in the circumstances. The appeal against the conviction was dismissed, and the application for leave to appeal against the sentence was refused.

Orders

Orders of the court

Appeal against conviction dismissed1.

Application for leave to appeal against sentence refused2.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Kingston [2008] QCA 193
PARTIES:	R v KINGSTON, Allan James (appellant)
FILE NO/S:	CA No 89 of 2007 DC No 2978 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	18 July 2008
DELIVERED AT:	Brisbane
HEARING DATE:	9 July 2008
JUDGES:	de Jersey CJ, Keane JA and Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Appeal against conviction dismissed1. Application for leave to appeal against sentence refused2.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where evidence of an admission by the appellant to two police officers was led at the trial – where the admission was not tape-recorded – where the police officers did not administer any warning prior to the admission – whether the evidence was admissible under s 436(3) of the Police Powers and Responsibilities Act 2000 (Qld) CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where evidence of prior acts of violence allegedly committed by the appellant against the complainant was led at the trial – whether this evidence was "relevant evidence" within the terms of s 132B of the Evidence Act 1977 (Qld) CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – where the appellant was sentenced to 10 months imprisonment for one count of assault occasioning bodily harm committed against a 63 year old woman – whether the sentence imposed was in the circumstances manifestly excessive Criminal Code Act 1899 (Qld), s 339(1) Evidence Act 1977 (Qld), s 132B Police Powers and Responsibilities Act 2000 (Qld), s 415, s 431, s 436(3), s 437 HML v The Queen (2008) 82 ALJR 723; [2008] HCA 16, applied R v Chevathen & Dorrick (2001) 122 A Crim R 441; [2001] QCA 337, cited R v Etherington (1982) 32 SASR 230, cited R v Garner (1963) 81 WN (Pt 1) (NSW) 120, cited R v LR [2006] 1 Qd R 435; [2005] QCA 368, cited R v Ward[1998] QCA 329, distinguished
COUNSEL:	The appellant appeared on his own behalf G P Cash for the respondent
SOLICITORS:	The appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent