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 1999DIVISION: 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 madeORDER: Appeal against conviction dismissed
Application for leave to appeal against sentence refusedCATCHWORDS: 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 respondentSOLICITORS: 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…
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- AGLC
- R v McCormick [2000] QCA 522
- Case
- [2000] QCA 522
- Decision Date
CaseChat Overview and Summary
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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