R v Kirkby - [2001] QCA 37

SUPREME COURT OF QUEENSLAND

CITATION: R v Kirkby [2001] QCA 37
PARTIES: R
v
KIRKBY, Gregory Rex
(applicant/appellant)
FILE NO/S: CA No 237 of 2000 SC No 818 of 1999
DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction & Sentence
ORIGINATING
COURT: District Court at Southport
DELIVERED ON: 23 February 2001
DELIVERED AT: Brisbane
HEARING DATE: 8 February 2001
JUDGES: de Jersey CJ, Williams JA, Mackenzie J
Separate reasons for judgment of each member of the Court,
each concurring as to the orders made
ORDER: Appeal against conviction dismissed.
Application for leave to appeal against sentence refused.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – OTHER GROUNDS – Appellant convicted of grievous bodily harm – Evidence of convicted accomplice critical to Crown’s case - Whether jury verdict was unsafe and unsatisfactory – External support for evidence of accomplice – In all the circumstances verdict not unsafe and unsatisfactory
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – OTHER MATTERS - Whether Judge directed jury to reject evidence of a witness where inconsistent with that of another witness – Whether Judge misdirected the jury as to motive – Held no misdirection in summing-up
R v Barrow [1999] 1 Qd R 628, considered
COUNSEL: A J Glynn SC with A J Rafter for the applicant/appellant
M J Byrne QC for the respondent
SOLICITORS: Dearden Lawyers for the applicant/appellant
Director of Public Prosecutions (Queensland) for the
respondent

de JERSEY CJ: I would dismiss the appeal against conviction and refuse the application for leave to appeal against sentence. I have had the advantage of reading the reasons for judgment of Williams JA, with which I agree.
WILLIAMS JA: Gregory Rex Kirkby, the appellant, appeals against his conviction for the offence of doing grievous bodily harm to Raymond George Randell.
There is no doubt that on 6 May 1988 Randell was assaulted whilst in his office on the Gold Coast. Indeed there was a formal admission at the trial by counsel for the appellant in the following terms:
“On 6 May 1988 at O’Shea Drive, Nerang, Raymond George Randell sustained injuries constituted by a compound oblique fracture across the frontal bone; a 12 centimetre laceration in a transverse direction over his forehead; a C-shaped laceration behind his left ear; undisplaced fractures of the interior tips of the left ninth and tenth ribs, and that those injuries in combination, constituted grievous bodily harm.”
The person who actually delivered the blows which caused the grievous bodily harm was one Paul James Bonner. He pleaded guilty to a charge of doing grievous bodily harm to Randell and was sentenced on 26 May 1997 to eight years imprisonment. That sentence was upheld on appeal, the judgment being delivered on 15 October 1997.
Earlier, on 11 November 1996, Ronald James Vogler had also pleaded…

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 Kirkby

Details

AGLC: R v Kirkby [2001] QCA 37
Case: [2001] QCA 37
Decision Date: 23 February 2001

CaseChat Overview and Summary

The appellant, Kirkby, appealed against his conviction for grievous bodily harm. The conviction was based largely on the testimony of a co-offender who had pleaded guilty and was testifying against Kirkby in exchange for a reduced sentence. The appeal hinged on the reliability of this accomplice’s evidence and whether the jury's verdict was so unreasonable as to be unjust. The High Court of Australia was tasked with determining whether the jury’s verdict was unsafe and unsatisfactory given the nature and quality of the evidence presented.

The court considered whether the accomplice's testimony was sufficiently corroborated to make the jury's verdict safe and satisfactory. It evaluated the credibility and reliability of the accomplice's evidence, including the extent to which it was supported by independent evidence. The court acknowledged the difficulty in relying on accomplice testimony but found that the jury was entitled to accept the evidence if they found it credible. The court also assessed whether the jury’s decision was one that no reasonable jury could have made on the evidence presented.

In examining the evidence, the court determined that while the accomplice’s testimony was critical, it was not the sole evidence upon which the conviction was based. There was additional circumstantial evidence that supported the accomplice’s account. The court concluded that the jury’s verdict, while resting heavily on the accomplice’s testimony, was not so unreasonable as to be unsafe and unsatisfactory. The court found that the jury was entitled to believe the accomplice's evidence, and therefore the verdict was sustainable.

The appeal against the conviction was dismissed. Additionally, the application for leave to appeal against the sentence was refused. This outcome affirms the jury's decision based on the evidence presented at trial, underscoring the principle that the assessment of witness credibility and the weight to be given to evidence lies primarily with the jury.

Orders

Orders of the court

Appeal against conviction dismissed.

Application for leave to appeal against sentence 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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CITATION:	R v Kirkby [2001] QCA 37
PARTIES:	R v KIRKBY, Gregory Rex (applicant/appellant)
FILE NO/S:	CA No 237 of 2000 SC No 818 of 1999
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	23 February 2001
DELIVERED AT:	Brisbane
HEARING DATE:	8 February 2001
JUDGES:	de Jersey CJ, Williams JA, Mackenzie J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Appeal against conviction dismissed. Application for leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – OTHER GROUNDS – Appellant convicted of grievous bodily harm – Evidence of convicted accomplice critical to Crown’s case - Whether jury verdict was unsafe and unsatisfactory – External support for evidence of accomplice – In all the circumstances verdict not unsafe and unsatisfactory
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – OTHER MATTERS - Whether Judge directed jury to reject evidence of a witness where inconsistent with that of another witness – Whether Judge misdirected the jury as to motive – Held no misdirection in summing-up
R v Barrow [1999] 1 Qd R 628, considered
COUNSEL:	A J Glynn SC with A J Rafter for the applicant/appellant M J Byrne QC for the respondent
SOLICITORS:	Dearden Lawyers for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent