R v Kong - [2009] QCA 34

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kong [2009] QCA 34

PARTIES:

R
v
KONG, Bradley David
(appellant)

FILE NO/S:

CA No 146 of 2008
DC No 1479 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

27 February 2009

DELIVERED AT:

Brisbane

HEARING DATE:

28 November 2008

JUDGES:

Holmes and Fraser JJA and McMurdo J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The appeal is allowed, the conviction set aside and a new trial ordered

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF THE TRIAL JUDGE – where appellant convicted by a jury of one count of dangerously operating a motor vehicle causing grievous bodily harm – where appellant appealed his conviction – where the learned judge declared a Crown witness hostile, notwithstanding that the witness was not shown to have made any previous inconsistent or untrue statement – whether the witness was not desirous of telling the truth – whether the learned judge applied the test correctly – whether the learned judge’s ruling was wrong – whether miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where appellant convicted of one count of dangerously operating a motor vehicle causing grievous bodily harm – where appellant appealed his conviction – where complainant had a personal injuries claim for damages – where defence counsel reminded the jury of this fact in his closing address – where the learned judge directed the jury not to have regard to the complainant’s interest in his claim for damages – whether the learned judge erred in giving the direction – whether miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – OTHER MATTERS – where appellant convicted of one count of dangerously operating a motor vehicle causing grievous bodily harm – where appellant appealed his conviction – where opposing versions were given of the manner in which appellant rode his motorcycle – where expert opinion supported the defence case – where Crown case was far from strong – whether it was open to a properly instructed jury to reach a verdict of guilt on the evidence

McLellan v Bowyer (1961) 106 CLR 95; [1961] HCA 49, cited
R v Hadlow [1992] 2 Qd R 440, cited
R v Lawrie [1986] 2 Qd R 502, cited

COUNSEL:

J J Allen for the appellant
M J Copley SC for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

HOLMES JA: The appellant was convicted by a jury of one count of dangerously operating a vehicle causing grievous bodily harm. He appeals that conviction on the grounds that a hostile witness ruling was wrongly made; that a direction to the jury that they…

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 [2009] QCA 34
Case: [2009] QCA 34
Decision Date: 27 February 2009

CaseChat Overview and Summary

The appellant in this case was convicted by a jury of one count of dangerously operating a motor vehicle causing grievous bodily harm. He appealed his conviction, contending that the trial judge had erred in declaring a Crown witness hostile and in giving a direction to the jury regarding the complainant's interest in his claim for damages. The appeal also argued that the verdict was unreasonable or insupportable having regard to the evidence presented. The High Court of Australia was tasked with determining whether the trial judge's actions amounted to a miscarriage of justice.

The legal issues in this case revolved around the conduct of the trial judge, specifically whether the judge correctly applied the test for declaring a witness hostile and whether the judge's direction to the jury about the complainant's damages claim was appropriate. Additionally, the court had to assess whether the verdict was unreasonable or insupportable given the evidence, which included conflicting accounts of the events and expert opinions supporting the defence's version.

The court found that the trial judge had indeed erred in declaring the Crown witness hostile without sufficient evidence that the witness was not truthful. Furthermore, the judge's direction to the jury regarding the complainant's interest in his damages claim was considered misdirection. The court concluded that these errors had the potential to cause a miscarriage of justice. The court also found that the evidence was not strong enough to support the jury's verdict of guilt, given the opposing versions of events and expert opinions supporting the defence's case.

Accordingly, the appeal was allowed, the conviction set aside, and a new trial ordered. The court emphasised that the errors in the trial had the potential to influence the jury's decision, warranting a fresh trial to ensure a fair outcome.

Orders

Orders of the court

The appeal is allowed, the conviction set aside and a new trial ordered

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

Full text does not contain this section.

CITATION:	R v Kong [2009] QCA 34
PARTIES:	R v KONG, Bradley David (appellant)
FILE NO/S:	CA No 146 of 2008 DC No 1479 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	27 February 2009
DELIVERED AT:	Brisbane
HEARING DATE:	28 November 2008
JUDGES:	Holmes and Fraser JJA and McMurdo J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The appeal is allowed, the conviction set aside and a new trial ordered
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF THE TRIAL JUDGE – where appellant convicted by a jury of one count of dangerously operating a motor vehicle causing grievous bodily harm – where appellant appealed his conviction – where the learned judge declared a Crown witness hostile, notwithstanding that the witness was not shown to have made any previous inconsistent or untrue statement – whether the witness was not desirous of telling the truth – whether the learned judge applied the test correctly – whether the learned judge’s ruling was wrong – whether miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where appellant convicted of one count of dangerously operating a motor vehicle causing grievous bodily harm – where appellant appealed his conviction – where complainant had a personal injuries claim for damages – where defence counsel reminded the jury of this fact in his closing address – where the learned judge directed the jury not to have regard to the complainant’s interest in his claim for damages – whether the learned judge erred in giving the direction – whether miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – OTHER MATTERS – where appellant convicted of one count of dangerously operating a motor vehicle causing grievous bodily harm – where appellant appealed his conviction – where opposing versions were given of the manner in which appellant rode his motorcycle – where expert opinion supported the defence case – where Crown case was far from strong – whether it was open to a properly instructed jury to reach a verdict of guilt on the evidence McLellan v Bowyer (1961) 106 CLR 95; [1961] HCA 49, cited R v Hadlow [1992] 2 Qd R 440, cited R v Lawrie [1986] 2 Qd R 502, cited
COUNSEL:	J J Allen for the appellant M J Copley SC for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent