R v McCartney - [1999] QCA 238

IN THE COURT OF APPEAL [1999] QCA 238
SUPREME COURT OF QUEENSLAND
C.A. No. 13 of 1999
Brisbane
[R v McCartney]
THE QUEEN
v
DANIEL GARY McCARTNEY

(Applicant) Appellant
McMurdo P Thomas JA Derrington J

Judgment delivered 22 June 1999.
Joint reasons for judgment of Thomas JA and Derrington J; separate reasons of McMurdo P

c oncurring as to the orders made.
APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL ALLOWED. SENTENCE BELOW SET ASIDE AND IN LIEU THEREOF SENTENCE OF FIVE YEARS’ IMPRISONMENT IMPOSED WITH A DECLARATION THAT THE APPELLANT IS CONVICTED OF A SERIOUS VIOLENT OFFENCE. IT IS ALSO DECLARED THAT THE APPELLANT WAS IN PRE-SENTENCE CUSTODY BETWEEN 9 SEPTEMBER 1997 AND 2 NOVEMBER 1997, BETWEEN 14 DECEMBER 1997 AND 11 JUNE 1998, BETWEEN 7 JULY 1998 AND 3 AUGUST 1998 AND BETWEEN 4 SEPTEMBER 1998 AND 9 DECEMBER 1998, AND THAT A PERIOD OF 355 DAYS OF PRE-SENTENCE CUSTODY HAS ALREADY BEEN SERVED PURSUANT TO

T HE SENTENCE ON EACH OFFENCE.
CATCHWORDS: CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON- DIRECTION - PRESENTATION OF DEFENCE CASE AND CROWN CASE AND REVIEW OF EVIDENCE - Weissensteiner summing up - whether summing up in relation to appellant’s not giving evidence defective.
CRIMINAL - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - whether evidence of identification of offender by complainant should have been admitted at trial.
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSON - APPLICATION TO REDUCE SENTENCE - whether sentence of seven years’ imprisonment manifestly excessive - physical violence not of highest level but associated with threats to kill and apparent ability to carry them out - bad criminal history - lack of remorse - need to protect community in future - whether in determining sentence, a declaration that offender is a serious violent offender should be taken into account - whether sentence of seven years’ imprisonment should remain without the declaration or whether the sentence be reduced with a retention of the declaration - sentence of five years with a declaration imposed.
House v The King (1936) 55 CLR 508.
Mill v The Queen (1988) 166 CLR 59.
Postiglione v The Queen (1996- 1997) 189 CLR 295.
R v Bojovic C.A. No 4 of 1999, 8 June 1999.
R v Booth C.A. No 338 of 1998, 30 March 1999.
R v Daphney C.A. No 328 of 1998, 16 March 1999.
R v Ilic C.A. No. 38 of 1993, 16 March 1993.
R v Robinson, Ex Parte Attorney-General C.A. No 72 of 1998,
26 May 1998.
R v Siganto (1998) 73 ALJR 162.
Weissensteiner v The Queen (1993) 178 CLR 217.
Penalties & Sentences Act 1992, s.161B, s.9(1).

Counsel: The appellant/applicant appeared on his own behalf.
Mr D Meredith for the respondent.
Solicitors: The appellant/applicant appeared on his own behalf.
Director of Public Prosecutions (Queensland) for the…

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 McCartney

Details

AGLC: R v McCartney [1999] QCA 238
Case: [1999] QCA 238
Decision Date: 22/06/1999

CaseChat Overview and Summary

The appellant, McCartney, appealed his convictions for attempted armed robbery and armed robbery with personal violence that occurred on 15 July 1997. The attack took place at a hardware store where the appellant, along with an accomplice, attempted to rob the store. The assistant manager, Mr Stark, was assaulted and robbed of money and a credit card. The appellant and his accomplice left Mr Stark tied up and taped, severely injured. The appeal against conviction primarily focused on the admissibility and weight of the identification evidence, particularly the blood evidence and the subsequent identification by Mr Stark.

The court needed to decide whether the trial judge correctly admitted the identification evidence, given its potential prejudicial effect and the difficulties in Mr Stark's identification of the appellant. The court also needed to consider whether the trial judge's instructions to the jury adequately mitigated the risks associated with the identification evidence, ensuring that the jury did not solely rely on it for conviction.

The court found that the trial judge properly admitted the identification evidence, despite its weaknesses, because it was relevant and probative. The court held that the trial judge adequately cautioned the jury about the risks associated with the identification evidence, ensuring that it was considered as circumstantial evidence rather than the sole basis for conviction. The court concluded that the trial judge's instructions sufficiently protected the appellant's right to a fair trial.

No orders were made to set aside the convictions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JA AND DERRINGTON J

I agree with the orders proposed by Thomas JA and Derrington J. JOINT REASONS FOR JUDGMENT - THOMAS Judgment delivered 22 June 1999 Appeal against conviction The appellant was convicted of one count of attempted armed robbery whilst in company and one count of armed robbery with personal violence whilst in company, both in the one incident on 15 July 1997. The appellant was then eighteen years of age and was nineteen years at trial. He and an accomplice attempted to rob a hardware store at about closing time when only the assistant manager, a Mr Stark, was present. The offenders were wearing stocking masks and were armed; the appellant with a sawn off gun and his partner with a wheel brace. Mr Stark had earlier locked the safe and although he was not privy to its combination, they tried to force him to unlock it by threats to kill him and by punching him about the face. As the result of this assault, his eyes were blackened, his zygoma was fractured and his lip was split. When he convinced them that he could not open it, they stole money and a credit card from his wallet. They then pushed him to the floor and sat on him until they tied him up and taped his mouth. They left him lying in a pool of his own blood. About two hours later, they were apprehended in a motor car by the police in relation to another matter. After the police took possession of the car, they found a pair of shoes, the ownership of which the appellant admitted. During their investigation of the present matter, the police saw a possibility of its connection with the men whom they had apprehended. They showed the appellant’s shirt to Mr Stark but he was unable to identify it. However, at the police station, he happened to follow a police officer to that officer’s desk without the latter’s knowledge, and he saw a photograph of the appellant on the desk. He immediately identified it as that of one of the persons implicated in the robbery. This evidence was of course tainted by these circumstances and was otherwise weakened by some frank admission of Mr Stark as to difficulties in his identification. However, it was not the only evidence implicating the appellant. During the robbery he had stepped on blood that had fallen from Mr Stark’s wounds and the prosecution was able to establish that blood on the sole of one of his shoes found in the car matched that of Mr Stark in a combination of features that made the chance of error 1 in 290,000,000. Further, the pattern of the sole of his shoe matched a blood-mark on the floor of the hardware store that was made during the robbery. Despite the appellant’s objection, the learned trial judge admitted the identification evidence. The appeal against conviction relies on two grounds: In his summing up the learned trial judge fully warned the jury as to the dangers associated with identification evidence in general and of this evidence in particular. He warned them that if the prosecution case had relied upon the identification evidence alone, they could not convict upon it. He plainly instructed them that it could be used only as a factor by way of circumstantial evidence, and then only subject to all the caution appropriate to its weaknesses that he had identified.

Ratio Decidendi

Legal Principle Established

Established by: JA AND DERRINGTON J

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IN THE COURT OF APPEAL	[1999] QCA 238
SUPREME COURT OF QUEENSLAND

Counsel:	The appellant/applicant appeared on his own behalf. Mr D Meredith for the respondent.
Solicitors:	The appellant/applicant appeared on his own behalf. Director of Public Prosecutions (Queensland) for the…