R v Kissier

Case [2011] QCA 223


SUPREME COURT OF QUEENSLAND

CITATION:

R v Kissier [2011] QCA 223

PARTIES:

R
v
KISSIER,
Clinton James
(appellant/applicant)

FILE NO/S:

CA No 231 of 2010
DC No 27 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Mackay

DELIVERED ON:

6 September 2011

DELIVERED AT:

Brisbane

HEARING DATE:

21 June 2011

JUDGES:

Fraser and White JJA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.     Leave to adduce evidence from Veronica Kissier and Sasha Rose McLean refused.

2.     Appeal against conviction dismissed.

3.     Application for leave to appeal against sentence refused.

4.     Order that the appellant serve the balance of the suspended sentence of 12 months imposed at the District Court at Mackay on 16 July 2007, being a period of six months, concurrently with the sentences imposed on the appellant on 9 September 2010.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – PARTICULAR MATTERS – OTHER CASES – where appellant’s pre-trial application for a no jury order pursuant to s 615 Criminal Code (Qld) was refused – appellant submitted adverse pre-trial publicity may affect jury deliberations – whether primary judge erred in refusing to make a no jury order

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – FRESH EVIDENCE – AVAILABILITY AT TRIAL; MATERIALITY AND COGENCY – where appellant sought leave to adduce evidence from the appellant’s mother and co-offender’s sister that the complaint by the complainant that he was stabbed by the co-offender’s sister was made to police after the incident with the appellant – where that fact had been disclosed to the appellant’s legal representatives prior to the appellant’s trial – where appellant sought leave to adduce evidence from the co-offender’s sister about her subsequent acquittal of offence arising from stabbing incident – where prosecution case was that the motivation for the appellant and the co-offender to attack the complainant was their belief that the complainant had complained to police about the earlier incident involving the co-offender’s sister – where timing of the complainant’s complaint about the earlier stabbing incident and outcome of the trial arising from that incident not material evidence in the trial of the appellant

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – OTHER MATTERS – where the complainant had numerous convictions – where the prosecution case depended on the credibility and reliability of the complainant – whether the trial judge’s direction on how jury should take account of the complainant’s convictions in assessing his evidence was adequate

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE…

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Details
AGLC
R v Kissier [2011] QCA 223
Case
[2011] QCA 223
Decision Date

CaseChat Overview and Summary

In the case of R v Kissier, the appellant sought to appeal his convictions and sentence following his involvement in an attack on the complainant. The primary judge had denied the appellant's pre-trial application for a no-jury trial, despite concerns about adverse pre-trial publicity. The appellant also sought to introduce new evidence from witnesses, including the co-offender's sister, regarding the timing and outcome of a separate incident involving the complainant. The appellant challenged the adequacy of the trial judge's directions to the jury concerning the complainant's credibility and the impact of his convictions on his testimony. The appellant further argued that the jury's verdict was unreasonable given the evidence presented. The final point of appeal was the appellant's contention that his sentence was manifestly excessive.

The court considered whether the primary judge's refusal of the no-jury trial application was appropriate in light of the appellant's concerns about pre-trial publicity. The court assessed whether the appellant's application for new evidence should have been allowed and if the trial judge's directions to the jury about the complainant's credibility were adequate. The court examined whether the jury's verdict was open on the evidence and whether the appellant's sentence was manifestly excessive. The court found that the primary judge's decision to refuse the no-jury trial was within their discretion. The court determined that the proposed new evidence was not material and that the trial judge's directions to the jury were sufficient. The court found that the jury's verdict was open on the evidence, and the sentence imposed was not manifestly excessive.

The court dismissed the appeal against conviction and refused the application for leave to appeal against sentence. The court also denied the appellant's application to adduce new evidence from Veronica Kissier and Sasha Rose McLean. The court ordered that the appellant serve the remaining six months of the suspended sentence imposed at the District Court at Mackay on 16 July 2007 concurrently with the sentences imposed on 9 September 2010.

Orders

Orders of the court

1. Leave to adduce evidence from Veronica Kissier and Sasha Rose McLean refused.

2. Appeal against conviction dismissed.

3. Application for leave to appeal against sentence refused.

4. Order that the appellant serve the balance of the suspended sentence of 12 months imposed at the District Court at Mackay on 16 July 2007, being a period of six months, concurrently with the sentences imposed on the appellant on 9 September 2010.

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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