R v Manahan - [2000] QCA 382

SUPREME COURT OF QUEENSLAND

CITATION: R v Manahan [2000] QCA 382

PARTIES: R
v
MANAHAN, David Leigh
(applicant/appellant)

FILE NO/S: CA No 207 of 2000
DC No 276 of 2000

DIVISION: Court of Appeal

PROCEEDING: Appeal against conviction and sentence

ORIGINATING COURT:
District Court at Maroochydore

DELIVERED ON: 19 September 2000

DELIVERED AT: Brisbane

HEARING DATE: 13 September 2000

JUDGES: McPherson JA, White J, Jones J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

ORDER:
1.     Appeal against conviction dismissed.

2.     Application for leave to appeal against sentence
       granted.

3.     Appeal against sentence allowed. Vary the
       sentence imposed below and order that the
       term of imprisonment be wholly suspended.

CATCHWORDS:
CRIMINAL LAW - APPEAL AND NEW TRIAL AFTER CONVICTION - APPEAL AND NEW TRIAL - OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW - MISDIRECTION AND NON-DIRECTION -where appellant convicted of dangerous driving causing grievous bodily harm - whether misstatement of time period deprived accused of fair chance of acquittal

CRIMINAL LAW - APPEAL AND NEW TRIAL AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - GENERALLY - whether jury entitled to accept evidence of one expert over another

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CHARACTER OF OFFENCE - DRIVING OFFENCES

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - MISCELLANEOUS MATTERS - HARDSHIP

Criminal Code, s 328A

Chamberlain v R (No 2) (1983) 153 CLR 521
McBride v R (1965-1966) 115 CLR 44
R v Anderson; ex parte Attorney General of Queensland CA No 284 of 1998; [1998] QCA 355
R v Evans [1963] 1 QB 412
R v Harris; ex parte Attorney General of Queensland CA No 161 of 1999; [1999] QCA 392

COUNSEL: A MacSporran for applicant/appellant
N Weston for the respondent

SOLICITORS: Ferguson Cannon Lawyers for the applicant/appellant
Director of Public Prosecutions (Queensland) for the
respondent

McPHERSON JA: I agree with the reasons of White J for dismissing this appeal against conviction. I also agree with her Honour’s proposal for disposing of the application for leave to appeal against sentence. The sentence should be varied as she has suggested.

WHITE J: The appellant was convicted by a jury in the District Court at Maroochydore on 15 August 2000 of driving dangerously and thereby causing grievous bodily harm pursuant to s 328A of the Criminal Code. He was sentenced on that day to two years imprisonment suspended after six months for a period of three years and disqualified from holding or obtaining a driver’s licence for 18 months. He appeals against his conviction and seeks leave to appeal against sentence on the ground that it is manifestly excessive.

The appellant’s vehicle, which was on the wrong side of the road, crashed into an oncoming motor vehicle driven by Anthony Blakemore on the Bruce Highway at…

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 Manahan

Details

AGLC: R v Manahan [2000] QCA 382
Case: [2000] QCA 382
Decision Date: 19 September 2000

CaseChat Overview and Summary

The appellant was convicted of dangerous driving causing grievous bodily harm, contrary to section 328A of the Criminal Code. The matter came before the court on an appeal against the conviction and sentence, as well as an application for leave to appeal against the sentence. The appellant argued that he was deprived of a fair chance of acquittal due to a misdirection regarding the time period in which the offence occurred. Additionally, the appellant contended that there was a miscarriage of justice as the jury was not entitled to accept the evidence of one expert over another.

The court considered whether the misstatement of the time period deprived the appellant of a fair chance of acquittal, and whether the jury was entitled to accept the evidence of one expert over another. The court found that there was no misdirection or non-direction that could have led to a miscarriage of justice, as the jury was entitled to accept the evidence of one expert over another. The court also considered the factors to be taken into account when sentencing, such as the character of the offence and the hardship caused to the appellant and his family.

The appeal against conviction was dismissed, and the application for leave to appeal against the sentence was granted. The appeal against the sentence was allowed, and the sentence imposed below was varied. The term of imprisonment was to be wholly suspended.

The court ordered that the appeal against conviction be dismissed, that the application for leave to appeal against the sentence be granted, and that the appeal against the sentence be allowed. The sentence imposed below was to be varied, and the term of imprisonment was to be wholly suspended.

Orders

Orders of the court

1. Appeal against conviction dismissed.

2. Application for leave to appeal against sentence

granted.

3. Appeal against sentence allowed. Vary the

sentence imposed below and order that the

term of imprisonment be wholly suspended.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Manahan [2000] QCA 382
PARTIES:	R v MANAHAN, David Leigh (applicant/appellant)
FILE NO/S:	CA No 207 of 2000 DC No 276 of 2000
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against conviction and sentence
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	19 September 2000
DELIVERED AT:	Brisbane
HEARING DATE:	13 September 2000
JUDGES:	McPherson JA, White J, Jones J Separate reasons for judgment of each member of the Court, each concurring as to the orders made.
ORDER:	1. Appeal against conviction dismissed. 2. Application for leave to appeal against sentence granted. 3. Appeal against sentence allowed. Vary the sentence imposed below and order that the term of imprisonment be wholly suspended.
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AFTER CONVICTION - APPEAL AND NEW TRIAL - OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW - MISDIRECTION AND NON-DIRECTION -where appellant convicted of dangerous driving causing grievous bodily harm - whether misstatement of time period deprived accused of fair chance of acquittal CRIMINAL LAW - APPEAL AND NEW TRIAL AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - GENERALLY - whether jury entitled to accept evidence of one expert over another CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CHARACTER OF OFFENCE - DRIVING OFFENCES CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - MISCELLANEOUS MATTERS - HARDSHIP Criminal Code, s 328A Chamberlain v R (No 2) (1983) 153 CLR 521 McBride v R (1965-1966) 115 CLR 44 R v Anderson; ex parte Attorney General of Queensland CA No 284 of 1998; [1998] QCA 355 R v Evans [1963] 1 QB 412 R v Harris; ex parte Attorney General of Queensland CA No 161 of 1999; [1999] QCA 392
COUNSEL:	A MacSporran for applicant/appellant N Weston for the respondent
SOLICITORS:	Ferguson Cannon Lawyers for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent