R v Mackay - [2011] QCA 28

SUPREME COURT OF QUEENSLAND

CITATION:

R v Mackay [2011] QCA 28

PARTIES:

R
v
MACKAY, Brett Anthony
(applicant/appellant)

FILE NO/S:

CA No 199 of 2010
DC No 34 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

22 February 2011

DELIVERED AT:

Brisbane

HEARING DATE:

2 February 2011

JUDGES:

Margaret McMurdo P and Muir and Chesterman JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

The application to adduce further evidence is refused1.

The appeal against conviction is dismissed2.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL –VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where applicant was charged with going armed in public so as to cause fear and wilful damage of a motor vehicle – where applicant argued his convictions were unsafe and unsatisfactory – where applicant raised numerous complaints regarding the conduct of the trial by his legal counsel and the directions of the trial judge – whether verdict was unreasonable or insupportable having regard to the evidence

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FRESH EVIDENCE – IN GENERAL – where applicant seeks to adduce further evidence available at trial – whether the court should receive the evidence – whether that evidence when combined with the evidence at trial requires that the conviction be set aside to avoid a miscarriage of justice

Criminal Code 1899 (Qld), s 668E(1)

MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited
R v Condren, ex parte Attorney-General [1991] 1 Qd R 574, cited
R v Daly; ex parte A-G (Qld) [2005] QCA 162, cited
R v Katsidis; ex parte A-G (Qld)[2005] QCA 229, cited
R v Main (1999) 105 A Crim R 412; [1999] QCA 148, cited
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, cited

COUNSEL:

The applicant/appellant appeared on his own behalf
M J Copley SC for the respondent

SOLICITORS:

The applicant/appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

[1] MARGARET McMURDO P: The appellant, Brett Anthony Mackay, was convicted in the Ipswich District Court after a two day jury trial of going armed in public so as to cause fear (count 1) and wilful damage of a motor vehicle (count 2). He is self-represented in this appeal against conviction.

Grounds of appeal

[2] His grounds of appeal are:

"UNSAFE AND UNSATISFACTORY
1. Mrs Gillespie: kept changing her story from police-committal-trial.
2. Police photo of window: a) there are not 7 scratches but 2.
b) no scratches leading to cut rubber.
c) it looks like someone used a coat hanger to break into the car.

3. Police forensic: scratches done by a dragging motion. (To stab is a jab; poke sharply, a pushing movement.)
4. Police witnesses: false statements by police, times, dates, even the colour of…

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 Mackay

Details

AGLC: R v Mackay [2011] QCA 28
Case: [2011] QCA 28
Decision Date: 22/02/2011

CaseChat Overview and Summary

In the case of R v Mackay, the appellant was convicted of going armed in public so as to cause fear and wilful damage to a motor vehicle. The appellant sought to appeal against his conviction on the grounds that the verdict was unreasonable or insupportable having regard to the evidence. Additionally, the appellant raised numerous complaints regarding the conduct of the trial by his legal counsel and the directions of the trial judge. The appeal was heard in the relevant appellate court.

The primary legal issue for the court to decide was whether the verdict was unreasonable or insupportable having regard to the evidence. The appellant argued that his convictions were unsafe and unsatisfactory. Furthermore, the appellant sought to adduce further evidence that was available at the time of the trial but was not presented. The court had to consider whether this fresh evidence, when combined with the evidence at trial, required that the conviction be set aside to avoid a miscarriage of justice.

The court held that the verdict was not unreasonable or insupportable having regard to the evidence. The court dismissed the appellant's complaints regarding the conduct of the trial by his legal counsel and the directions of the trial judge. The court also held that the fresh evidence sought to be adduced by the appellant was not admissible and did not require the conviction to be set aside. The appeal against conviction was dismissed, and the application to adduce further evidence was refused.

The final orders of the court were that the application to adduce further evidence was refused and the appeal against conviction was dismissed. The appellant's convictions were upheld, and no new trial was ordered.

Orders

Orders of the court

The application to adduce further evidence is refused1.

The appeal against conviction is dismissed2.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Mackay [2011] QCA 28
PARTIES:	R v MACKAY, Brett Anthony (applicant/appellant)
FILE NO/S:	CA No 199 of 2010 DC No 34 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	22 February 2011
DELIVERED AT:	Brisbane
HEARING DATE:	2 February 2011
JUDGES:	Margaret McMurdo P and Muir and Chesterman JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	The application to adduce further evidence is refused1. The appeal against conviction is dismissed2.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL –VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where applicant was charged with going armed in public so as to cause fear and wilful damage of a motor vehicle – where applicant argued his convictions were unsafe and unsatisfactory – where applicant raised numerous complaints regarding the conduct of the trial by his legal counsel and the directions of the trial judge – whether verdict was unreasonable or insupportable having regard to the evidence APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FRESH EVIDENCE – IN GENERAL – where applicant seeks to adduce further evidence available at trial – whether the court should receive the evidence – whether that evidence when combined with the evidence at trial requires that the conviction be set aside to avoid a miscarriage of justice Criminal Code 1899 (Qld), s 668E(1) MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited R v Condren, ex parte Attorney-General [1991] 1 Qd R 574, cited R v Daly; ex parte A-G (Qld) [2005] QCA 162, cited R v Katsidis; ex parte A-G (Qld)[2005] QCA 229, cited R v Main (1999) 105 A Crim R 412; [1999] QCA 148, cited TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, cited
COUNSEL:	The applicant/appellant appeared on his own behalf M J Copley SC for the respondent
SOLICITORS:	The applicant/appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent