R v Martinez - [2015] QCA 169

SUPREME COURT OF QUEENSLAND

CITATION:

R v Martinez [2015] QCA 169

PARTIES:

R
v
MARTINEZ, Carlos Javier Mediero
(appellant)

FILE NO/S:

CA No 57 of 2015
DC No 111 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Cairns – Unreported, 5 March 2015

DELIVERED ON:

18 September 2015

DELIVERED AT:

Brisbane

HEARING DATE:

3 September 2015

JUDGES:

Gotterson and Morrison JJA and McMeekin J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Appeal allowed.

2.   Conviction set aside.

3.   The appellant be retried on the count in the indictment presented on 28 March 2013.

CATCHWORDS:

APPEAL AND NEW TRIAL – NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – IRREGULARITY AS REGARDS PROCEDURE – MATTERS RELATING TO JURIES – where the appellant was convicted of an offence against s 328A(1) of the Criminal Code (Qld) in circumstances to which s 328A(4) thereof applied, in that he dangerously operated a vehicle, namely a truck, and caused the death of another person – where the appellant was sentenced to two years’ imprisonment, a parole release date at 5 March 2016 was set and the appellant was disqualified from holding or obtaining a driver’s licence for a period of three years – where eyewitnesses stated that the appellant’s vehicle veered to the left and, in what was described as an overcorrection, veered suddenly to the right and into the path of an oncoming sedan and a collision ensued – where the driver of the sedan died as a result of injuries sustained in the collision – where there was no evidence of excessive speed on the appellant’s part or that his truck was overloaded – where there was evidence that the truck did not have any mechanical defects which could have contributed to the incident – where the appellant had a zero blood alcohol level and he was not using a mobile phone at the time of the collision – where there was evidence that it had rained in the vicinity that morning – where when the vehicles collided, there was, at most, a light drizzle – where the appellant gave evidence at his trial – where the appellant explained that he was hit by a considerably strong gust of wind that forced the rear wheels on the passenger side of the truck off the bitumen – where the appellant tried to ease the truck back fully on to the bitumen surface – where the truck did not respond as he had intended and the truck was drawn back towards the right in a manner that he could not control and continued to travel to the right and into the path of oncoming traffic in the southbound lane – where the appellant’s evidence in this regard was consistent with an explanation that he had given to a solicitor one year and one month after the incident, however, the appellant had not made…

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 Martinez

Details

AGLC: R v Martinez [2015] QCA 169
Case: [2015] QCA 169
Decision Date: 18 September 2015

CaseChat Overview and Summary

The appeal by Martinez against his conviction for dangerous operation of a vehicle causing death was heard by the Court of Appeal. The appellant was found to have caused the death of another person by dangerously operating a truck which veered into oncoming traffic and collided with a sedan, resulting in the death of the driver. The appellant was sentenced to two years’ imprisonment with a parole release date set for 5 March 2016 and disqualified from holding or obtaining a driver’s licence for three years. The sole ground of appeal was that a miscarriage of justice occurred due to a material irregularity in the trial, namely the transcript provided to the jury contained statements made by the trial judge or counsel in the absence of the jury.

The court had to determine if the irregularity amounted to a miscarriage of justice. The court considered the nature of the irregularity, the impact it may have had on the jury's deliberations, and whether the irregularity was material to the verdict. The court noted that the appellant had a zero blood alcohol level, was not using a mobile phone, and there was no evidence of excessive speed or mechanical defects. The court also noted that the appellant had given evidence consistent with an explanation he had given to a solicitor after the incident, but had not mentioned wind gusts to police at the scene.

The court concluded that the irregularity was material and amounted to a miscarriage of justice. The court found that the transcript provided to the jury contained statements that were not meant to be heard by the jury, and that the inclusion of these statements may have influenced the jury's deliberations. The court found that the irregularity had the potential to affect the fairness of the trial and the verdict. The court allowed the appeal, set aside the conviction, and ordered a retrial on the count in the indictment presented on 28 March 2013.

Orders

Orders of the court

1. Appeal allowed.

2. Conviction set aside.

3. The appellant be retried on the count in the indictment presented on 28 March 2013.

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 Martinez [2015] QCA 169
PARTIES:	R v MARTINEZ, Carlos Javier Mediero (appellant)
FILE NO/S:	CA No 57 of 2015 DC No 111 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Cairns – Unreported, 5 March 2015
DELIVERED ON:	18 September 2015
DELIVERED AT:	Brisbane
HEARING DATE:	3 September 2015
JUDGES:	Gotterson and Morrison JJA and McMeekin J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal allowed. 2. Conviction set aside. 3. The appellant be retried on the count in the indictment presented on 28 March 2013.
CATCHWORDS:	APPEAL AND NEW TRIAL – NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – IRREGULARITY AS REGARDS PROCEDURE – MATTERS RELATING TO JURIES – where the appellant was convicted of an offence against s 328A(1) of the Criminal Code (Qld) in circumstances to which s 328A(4) thereof applied, in that he dangerously operated a vehicle, namely a truck, and caused the death of another person – where the appellant was sentenced to two years’ imprisonment, a parole release date at 5 March 2016 was set and the appellant was disqualified from holding or obtaining a driver’s licence for a period of three years – where eyewitnesses stated that the appellant’s vehicle veered to the left and, in what was described as an overcorrection, veered suddenly to the right and into the path of an oncoming sedan and a collision ensued – where the driver of the sedan died as a result of injuries sustained in the collision – where there was no evidence of excessive speed on the appellant’s part or that his truck was overloaded – where there was evidence that the truck did not have any mechanical defects which could have contributed to the incident – where the appellant had a zero blood alcohol level and he was not using a mobile phone at the time of the collision – where there was evidence that it had rained in the vicinity that morning – where when the vehicles collided, there was, at most, a light drizzle – where the appellant gave evidence at his trial – where the appellant explained that he was hit by a considerably strong gust of wind that forced the rear wheels on the passenger side of the truck off the bitumen – where the appellant tried to ease the truck back fully on to the bitumen surface – where the truck did not respond as he had intended and the truck was drawn back towards the right in a manner that he could not control and continued to travel to the right and into the path of oncoming traffic in the southbound lane – where the appellant’s evidence in this regard was consistent with an explanation that he had given to a solicitor one year and one month after the incident, however, the appellant had not made…