R v Kong - [2010] QCA 195

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kong [2010] QCA 195

PARTIES:

R
v
KONG, Bradley David
(appellant)

FILE NO/S:

CA No 322 of 2009
DC No 1479 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

30 July 2010

DELIVERED AT:

Brisbane

HEARING DATE:

19 July 2010

JUDGES:

Muir and White JJA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where appellant involved in motorcycle collision – where both parties sustained serious injuries – where appellant convicted after trial of dangerous operation of a vehicle causing grievous bodily harm – where prosecution particularised its case of dangerous driving as based on speed – whether jury could be satisfied beyond reasonable doubt by acting on evidence of witnesses about appellant’s speed

MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited
R v Duryea (2008) 103 SASR 70; [2008] SASC 363, cited

COUNSEL:

A J Glynn SC for the appellant
M B Lehane for the respondent

SOLICITORS:

Richardson McGhie for the appellant
Director of Public Prosecutions (Queensland) for the respondent

MUIR JA: I agree that the appeal should be dismissed for the reasons given by White JA.

WHITE JA: On 9 December 2009 the appellant was found guilty after trial of one count of dangerous operation of a vehicle causing grievous bodily harm to Glenndon Fleming. The appellant was sentenced to two years imprisonment wholly suspended with an operational period of four years, fined $2,000 to be paid within 18 months, and disqualified from holding or obtaining a drivers licence for a period of two years. He appeals against his conviction on the sole ground that the verdict of the jury is unreasonable having regard to the whole of the evidence. Mr A J Glynn SC, who appeared for the appellant, abandoned the other grounds of appeal.

The event which led to the charge involved a “side swipe” collision between two motorcycles on Sunday morning, 30 January 2005, on the Kilcoy-Beerwah Road between Woodford and Beerwah in the Peachester Ranges. The appellant was riding a 1,000cc Kawasaki Ninja ZX10R motorcycle and Glenndon Fleming was riding a Harley Davidson Heritage Classic motorcycle. Both men were experienced motorcycle riders and familiar with the road. Each was travelling with other experienced motorcycle riders.

The trial was a re-trial. The appellant’s conviction on the earlier trial in May 2008 had been set aside by this court on 27 February 2009 and a new trial ordered.

Admissions were made that Mr Fleming suffered injuries in the collision that amounted to grievous bodily harm. He lost the lower part of his right leg. The appellant also suffered serious injury to his right hand and arm, leaving them with little function. The two…

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 Kong

Details

AGLC: R v Kong [2010] QCA 195
Case: [2010] QCA 195
Decision Date: 30 July 2010

CaseChat Overview and Summary

In the case of R v Kong, the appellant was involved in a motorcycle collision that resulted in serious injuries to both parties. The appellant was subsequently convicted of dangerous operation of a vehicle causing grievous bodily harm. The prosecution particularised its case of dangerous driving as based on speed, relying on the evidence of witnesses. The appellant appealed against the conviction, arguing that the verdict was unreasonable or insupportable having regard to the evidence.

The primary legal issue for the court was whether the jury could be satisfied beyond reasonable doubt based on the evidence presented regarding the appellant's speed. The court examined the evidence provided by the witnesses, the appellant's version of events, and the applicable legal standards for dangerous driving. The court considered whether the evidence was sufficient to prove the appellant's dangerous driving beyond reasonable doubt.

The court concluded that the evidence, including the testimony of the witnesses about the appellant's speed, was sufficient for the jury to be satisfied beyond reasonable doubt of the appellant's guilt. The court held that the jury was entitled to draw inferences from the evidence presented and that the verdict was not unreasonable or insupportable. As such, the appeal was dismissed, and the conviction was upheld.

The final orders of the court were to dismiss the appeal and uphold the conviction of the appellant for dangerous operation of a vehicle causing grievous bodily harm. The court found that the evidence was sufficient to support the jury's verdict, and the appeal did not meet the threshold for a verdict being unreasonable or insupportable.

Orders

Orders of the court

The appeal is dismissed.

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 Kong [2010] QCA 195
PARTIES:	R v KONG, Bradley David (appellant)
FILE NO/S:	CA No 322 of 2009 DC No 1479 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	30 July 2010
DELIVERED AT:	Brisbane
HEARING DATE:	19 July 2010
JUDGES:	Muir and White JJA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The appeal is dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where appellant involved in motorcycle collision – where both parties sustained serious injuries – where appellant convicted after trial of dangerous operation of a vehicle causing grievous bodily harm – where prosecution particularised its case of dangerous driving as based on speed – whether jury could be satisfied beyond reasonable doubt by acting on evidence of witnesses about appellant’s speed MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited R v Duryea (2008) 103 SASR 70; [2008] SASC 363, cited
COUNSEL:	A J Glynn SC for the appellant M B Lehane for the respondent
SOLICITORS:	Richardson McGhie for the appellant Director of Public Prosecutions (Queensland) for the respondent