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R v Kissier

R v Kissier

Case [2011] QCA 223 6 September 2011

Misdirection and Non-Direction

Unreasonable or Insurmountable Verdict

Sentencing

Criminal Law

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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…

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 Kissier

Details

AGLC: R v Kissier [2011] QCA 223
Case: [2011] QCA 223
Decision Date: 6 September 2011

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

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

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Citations

AGLC Citation

R v Kissier [2011] QCA 223

Most Recent Citation

R v Belghar [2012] NSWCCA 86

Cases citing this decision · 8 of 8 shown

R v Am
[2015] QDC 157 Para 1

…In reaching my decision, I have regard to the statements of principle expressed by the Court of Appeal in R v Kissier [2011] QCA 223. I have also been assisted with some single judge decisions: R v SAA [2009] QDC 5 and R v WHA [2013] QDC 339. Of course, each case depends on its own facts and it’s up to the judge…
R v BCM
[2014] QSC 321 Para 2

…ate in some cases. It was noted that the overriding discretion to make the order was premised on it being in the interests of justice to do so. [18][2011] QCA 223.…
R v Johnston
[2014] QDC 174 Para 1

…In R v Kissier [2012] 1 Qd R 353; [2011] QCA 223 Mullins J with whom the other members of the court agreed favoured the view that Chesterman JA expounded on the question of starting points (see [30]). However it might be said that this conclusion was obiter as Her Honour held that it was not strictly necessary to…
R v Patel
[2012] QSC 419 Para 1

…te situation if the question of what was in the interests of justice in a case like this depended solely upon who bore the onus of proof.[7] [6][2011] QCA 223 at [30]; cf also R v Belghar [2012] NSWCCA 86 at [95]-[96] and [118] [7]See Hidden J in R v Belghar [2012] NSWCCA 86 at [118]…
Perry v Queensland Police Service
[2012] QDC 294 Para 1

…is friend, Mr Crawford (with his partially obscured view). [24] Teelow v Commissioner of Police [2009] QCA 084; Commissioner of Police v Toomer [2011] QCA 223; Gobus v Queensland Police Service [2011] QCA 283; Riley v Doyle & Grimsey [1997] QCA 112.…
R v Belghar
[2012] NSWCCA 86 Para 1

…Fardon was followed by the decision of the Queensland Court of Appeal in R v Kissier [2011] QCA 223. In Kissier the appellant appealed against his conviction on a number of grounds, including that the relevant judge had erred in failing to make a no jury order (at [4]).…
R v FH
[2012] NSWDC 283 Para 1

…ior courts in other States. There are, in particular, the decisions of the Court of Appeal of Queensland in R v Fardon [2010] QCA 317 and R v Kissier [2011] QCA 223. In Kissier the primary judgment was given by Mullins J, with whom Fraser and White JJA concurred. After referring to the decision of Fardon , her Ho…
High Court Bulletin
[2012] HCAB 1

…Supreme Court of Queensland (Court of Appeal) [2011] QCA 223…

View all 8 citing cases →

Cases cited in this decision · 12 of 12 shown

R v Fardon
[2010] QCA 317 Para 1

…It was unnecessary for the Court of Appeal in R v Fardon [2010] QCA 317 ( Fardon ) to consider the ground of appeal based on the failure of the pre-trial judge to make a no jury order, as the appeal against conviction was allowed on another ground. Fardon was a case to which s 615(5) applied. Muir JA (with whom M…
R v Nolan
[2009] QCA 129 Para 1

…Some assistance is obtained from R v Nolan [2009] QCA 129 where a 21 year old offender was convicted after trial for one count of assault occasioning bodily harm in company, burglary and unlawful use of a motor vehicle. He had a concerning criminal history and committed the offence on the day he was released from…
R v Clough
[2008] QSC 307

…09] 1 Qd R 197; [2008] QSC 307, considered R v Fardon [2010] QCA 317, considered R v Leu ; R v Togia (2008) 186 A Crim R 240; [2008] QCA 201, considered R v Nolan [2009] QCA 129, considered TVM v Western Australia (2007) 180 A Crim R 183; [2007] WASC 299, considered COUNSEL: P E Smith, with K Hillard, for the app…
R v Leu; R v Togia
[2008] QCA 201

…6 A Crim R 240; [2008] QCA 201, considered R v Nolan [2009] QCA 129, considered TVM v Western Australia (2007) 180 A Crim R 183; [2007] WASC 299, considered COUNSEL: P E Smith, with K Hillard, for the appellant/applicant M B Lehane for the respondent SOLICITORS: Fisher Dore Lawyers for the appellant/applicant Dir…
TVM v The State of Western Australia
[2007] WASC 299

…0 A Crim R 183; [2007] WASC 299, considered COUNSEL: P E Smith, with K Hillard, for the appellant/applicant M B Lehane for the respondent SOLICITORS: Fisher Dore Lawyers for the appellant/applicant Director of Public Prosecutions (Queensland) for the respondent…
R v Jurd
[2007] QCA 228 Para 1

…mparable offending. Those comparable cases included some of those relied on by the appellant in this matter: R v Brelsford [1995] QCA 594, R v Jurd [2007] QCA 228, and R v Bowe ; R v Taylor [2004] QCA 414.…
R v Bowe; R v Taylor
[2004] QCA 414 Para 1

…included some of those relied on by the appellant in this matter: R v Brelsford [1995] QCA 594, R v Jurd [2007] QCA 228, and R v Bowe ; R v Taylor [2004] QCA 414.…
R v Brelsford
[1995] QCA 594 Para 1

…range of sentences for comparable offending. Those comparable cases included some of those relied on by the appellant in this matter: R v Brelsford [1995] QCA 594, R v Jurd [2007] QCA 228, and R v Bowe ; R v Taylor [2004] QCA 414.…
Bromley v The Queen
[1986] HCA 49

…6) 161 CLR 315; [1986] HCA 49, cited R v Clough [2009] 1 Qd R 197; [2008] QSC 307, considered R v Fardon [2010] QCA 317, considered R v Leu ; R v Togia (2008) 186 A Crim R 240; [2008] QCA 201, considered R v Nolan [2009] QCA 129, considered TVM v Western Australia (2007) 180 A Crim R 183; [2007] WASC 299, consid…
House v R
[1936] HCA 40

…is against a judicial discretion exercised by reference to undefined and indeterminate parameters. The conventional test found in House v The King (1936) 55 CLR 499 at 504-5 is unlikely to reveal appealable error. The width of the discretion conferred by s 615(1) will make challenges to it very difficult. We were n…
[2010] QDC 242
[2010] QDC 242 Para 1

…The judge who dismissed the application for the no jury order gave written reasons on 15 June 2010: R v Kissier [2010] QDC 242. The judge divided the publications into three categories: coverage of the appellant’s previous court appearances, convictions and sentences, communications made by readers via SMS publis…
House v The King
63 WN 176

…use any challenge is against a judicial discretion exercised by reference to undefined and indeterminate parameters. The conventional test found in House v The King (1936) 55 CLR 499 at 504-5 is unlikely to reveal appealable error. The width of the discretion conferred by s 615(1) will make challenges to it very difficult…

Legislation cited in this decision · 2

Criminal Code and Jury and Another Act Amendment Act 2008 (Qld)
1 mention (from Para 1)
Penalties and Sentences Act 1992 (Qld)
1 mention (from Para 1)

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…