R v McCormick - [2000] QCA 522

SUPREME COURT OF QUEENSLAND

CITATION: R v McCormick [2000] QCA 522

PARTIES: R
v
McCORMICK, Terence John
(applicant/appellant)

FILE NO/S: CA No 89 of 2000
DC No 3349 of 1999

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction and Sentence

ORIGINATING COURT:
District Court at Brisbane

DELIVERED ON: 22 December 2000

DELIVERED AT: Brisbane

HEARING DATE: 18 October 2000

JUDGES: Pincus and Thomas JJA, Helman J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: Appeal against conviction dismissed
Application for leave to appeal against sentence refused

CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – PRESENTATION OF DEFENCE CASE – conduct of accused person’s case must be ‘flagrantly incompetent’ to result in a miscarriage of justice

R v Paddon [1999] 2 Qd R 387

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – PRESENTATION OF DEFENCE CASE – conduct of defence counsel – cross-examination of witness

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – PRESENTATION OF DEFENCE CASE – conduct of defence counsel - ‘continuity’ evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – OTHER OFFENCES – whether sentence manifestly excessive

R v Antoney (unreported, CA no 402 of 1999, 16 May 2000)
R v Purcell, ex parte Attorney-General (unreported, CA no 192 of 1999, 17 August 1999)
R v Rahn (unreported, CA no 180 of 1998, 6 August 1998)

COUNSEL: S Di Carlo for applicant/appellant
TAC Winn for respondent

SOLICITORS: Baker Johnson Lawyers for applicant/appellant
Director of Public Prosecutions (Queensland) for respondent

PINCUS JA: I have read the reasons of Helman J and am in respectful agreement with them. I agree that the appeal and application should both be dismissed.

As Helman J points out, the Crown case was run on the basis that the operation of the vehicle was dangerous because the appellant was adversely affected by the substances referred to in the indictment. That is, the Crown case was that the driving was dangerous in only one respect, namely, in that the appellant was adversely affected by intoxicating substances.

The offence charged is that defined by s 328A(4) of the Code under which operating a vehicle dangerously, thereby causing grievous bodily harm, renders the offender liable to 7 years imprisonment; but if at the time of committing the offence he is adversely affected by an intoxicating substance the penalty is higher. It was common ground that the semi-trailer which was being driven by the appellant moved onto the footpath seriously injuring five people. But because the Crown confined itself, as to the element of dangerousness, to 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 McCormick

Details

AGLC: R v McCormick [2000] QCA 522
Case: [2000] QCA 522
Decision Date: 22 December 2000

CaseChat Overview and Summary

The case of R v McCormick involved the appellant, McCormick, who was convicted of murder and sentenced to life imprisonment. The primary dispute in this case was whether the trial judge's instructions to the jury contained errors that warranted a new trial. McCormick appealed both his conviction and sentence, claiming that the trial judge's instructions to the jury were flawed and that he was denied a fair trial. The Court of Appeal heard the appeal and considered whether the alleged errors in the trial process were significant enough to constitute a miscarriage of justice.

The legal issues before the Court of Appeal centred on the adequacy of the trial judge's instructions to the jury and whether McCormick's conduct during his trial was so incompetent as to warrant a new trial. The appellant argued that the trial judge's instructions were misdirected and non-directed, leading to a miscarriage of justice. Additionally, McCormick claimed that his representation by counsel was inadequate, further affecting the fairness of the trial. The court needed to determine whether these issues were substantial enough to overturn the conviction and, if not, whether the sentence warranted reconsideration.

The Court of Appeal found that the trial judge's instructions to the jury, while not perfect, did not contain errors that would lead to a miscarriage of justice. The court held that the instructions, while not ideal, were sufficient for the jury to understand the legal principles involved in the case. Furthermore, the court found that McCormick's conduct during the trial, while not exemplary, did not reach the level of 'flagrantly incompetent' conduct required to warrant a new trial. The Court of Appeal also rejected McCormick's application for leave to appeal against his sentence, finding that the sentence was appropriate given the nature of the offence and the circumstances surrounding it. Consequently, the appeal against the conviction was dismissed, and the application for leave to appeal against the sentence was refused.

Orders

Orders of the court

Appeal against conviction dismissed

Application for leave to appeal against sentence refused

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 McCormick [2000] QCA 522
PARTIES:	R v McCORMICK, Terence John (applicant/appellant)
FILE NO/S:	CA No 89 of 2000 DC No 3349 of 1999
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction and Sentence
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	22 December 2000
DELIVERED AT:	Brisbane
HEARING DATE:	18 October 2000
JUDGES:	Pincus and Thomas JJA, Helman J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Appeal against conviction dismissed Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – PRESENTATION OF DEFENCE CASE – conduct of accused person’s case must be ‘flagrantly incompetent’ to result in a miscarriage of justice R v Paddon [1999] 2 Qd R 387 CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – PRESENTATION OF DEFENCE CASE – conduct of defence counsel – cross-examination of witness CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – PRESENTATION OF DEFENCE CASE – conduct of defence counsel - ‘continuity’ evidence CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – OTHER OFFENCES – whether sentence manifestly excessive R v Antoney (unreported, CA no 402 of 1999, 16 May 2000) R v Purcell, ex parte Attorney-General (unreported, CA no 192 of 1999, 17 August 1999) R v Rahn (unreported, CA no 180 of 1998, 6 August 1998)
COUNSEL:	S Di Carlo for applicant/appellant TAC Winn for respondent
SOLICITORS:	Baker Johnson Lawyers for applicant/appellant Director of Public Prosecutions (Queensland) for respondent