R v Marshall - [1994] QCA 235

IN THE COURT OF APPEAL	[1994] QCA 235
SUPREME COURT OF QUEENSLAND
Brisbane	Appeal No. 12 of 1994
[R. v. Marshall]

T H E Q U E E N

JASON EDWARD MARSHALL

Appellant

The Chief Justice Mr Justice Pincus Mr Justice Byrne

Judgment delivered : 28/06/1994

udgment of the Court

Appeal against convictions dismissed. Application for leave to appeal against sentences refused.

CATCHWORDS: CRIMINAL LAW - Whether verdicts unsafe and unsatisfactory - Evidence adequate to sustain convictions - Sentences not manifestly excessive.

Counsel:

Mr B. Devereaux for the Appellant
Mr N. Clark for the Crown

Solicitors:

Legal Aid Office for the Appellant

Director of Prosecutions for the Crown

Hearing date: 11/04/1994

JUDGMENT OF THE COURT

Judgment delivered: 28/06/1994

At his trial in the Brisbane District Court the 22 year old appellant was convicted of unlawful assault occasioning bodily harm and indecent assault. The grounds of appeal, though lengthy, amount to contentions that the verdicts are unsafe.

The complainant is a fifty-six year old woman. The offences were said to have occurred on the night of 9 March 1993. At the trial, it was not in dispute that the complainant had been attacked and injured at the appellant's flat on that night. The main issue was whether the appellant had committed the crimes. He testified that two men burst into his flat, pushed him violently against the back door, and then attacked the complainant.

The appellant first met the complainant at a hotel situated a few minutes walk from his flat. She was there with her daughter, Julie Heiner. The three of them drank together before moving on to the appellant's flat. More alcohol was consumed there and, as the night wore on, the complainant became drunk.

During the evening, the appellant, who was also affected by alcohol, stripped to his underpants and paraded around in front of the women. The complainant accepted an invitation to dance with him but was so intoxicated that she had to sit down. According to the complainant's daughter, the appellant made sexual suggestions to her and also tried to kiss her mother. These overtures were unwelcome and Miss Heiner decided to leave. She tried to get her mother to go with her. The complainant, however, was so drunk that she could not put her shoes on, and she was too heavy to carry. Before she left, the complainant's daughter warned the appellant not to touch her mother, adding "I will have the police here". The complainant was assaulted during Miss Heiner's absence.

Miss Heiner took a taxi home to get help. No one was there. Panicking, she picked up a motor cycle helmet and returned to the flat. As she reached the flat, she testified, she waited to catch her breath beneath a window. There she heard the appellant saying "suck it, bitch. Suck me off, bitch...". She ran up the steps and met the appellant. He was naked. She called out to her mother and thought she received a reply like "help…

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 Marshall

Details

AGLC: R v Marshall [1994] QCA 235
Case: [1994] QCA 235
Decision Date: 28/06/1994

CaseChat Overview and Summary

The appellant, Jason Edward Marshall, was convicted in the Brisbane District Court of unlawful assault occasioning bodily harm and indecent assault, and he appealed against these convictions to the Supreme Court of Queensland. The appeal was dismissed, and the application for leave to appeal against the sentences was refused. The complainant, a fifty-six year old woman, was attacked and injured at the appellant's flat on the night of 9 March 1993. The main issue was whether the appellant had committed the crimes. The appellant claimed that two men had broken into his flat and assaulted the complainant. The court considered whether the verdicts were unsafe and unsatisfactory and whether the evidence was adequate to sustain the convictions. The court also considered whether the sentences were manifestly excessive.

The court found that the appellant's evidence was not credible, and the jury was justified in convicting him of both charges. The court noted that the appellant's account of events was inconsistent with the evidence presented at trial, and his claims of intruders were not supported by any physical evidence. The court also found that the evidence was sufficient to sustain the conviction for indecent assault, as the complainant had injuries to her genital area that were caused by external force. The court concluded that the jury was entitled to find that the appellant had interfered with the complainant for sexual gratification.

The court also considered the appellant's argument that the sentences were manifestly excessive. The court noted that the complainant was badly beaten and that the appellant had a history of offending, including house breaking, assault occasioning bodily harm, and resisting arrest. However, the court found that the sentences were appropriate given the severity of the offences and the need to deter the appellant and others from committing similar crimes. The court concluded that the sentences were not manifestly excessive and that the application for leave to appeal against them should be refused.

In conclusion, the appeal against the convictions was dismissed, and the application for leave to appeal against the sentences was refused. The court found that the verdicts were safe and satisfactory, and the evidence was adequate to sustain the convictions. The court also found that the sentences were appropriate and not manifestly excessive.

Orders