R v McGrady - [2001] QCA 302

[2001] QCA 302

COURT OF APPEAL

de JERSEY CJ
McPHERSON JA
WILLIAMS JA

CA No 44 of 2001
CA No 45 of 2001

THE QUEEN

RAYMOND BARRY McGRADY and Appellant
STEVEN JAMES McGRADY Applicant

BRISBANE

..DATE 27/07/2001

JUDGMENT

THE CHIEF JUSTICE: I will deal first of all with the appeal against conviction brought by Raymond McGrady. The jury's convicting the appellant of doing grievous bodily harm depended on the jury's accepting the evidence of the complainant, Mr Sandy, which was to the effect that both Raymond and his brother Steven assaulted him. And, also, rejecting the evidence of Steven that it was he, Steven, alone, who carried out the assault.

Steven pleaded guilty to doing grievous bodily harm to Mr Sandy. Raymond's grounds of appeal are essentially that the conviction is unsafe and perverse and there was oral mention this morning of a contention that the verdict was biased. The only live issue for the jury was whether Raymond joined in the attack.

Mr Sandy gave evidence that Raymond participated throughout until Craig Mason came along and intervened. Steven said that after his and Raymond's initial verbal confrontation with Mr Sandy, he, Steven, stepped in and took over with Raymond then getting back into his car.

APPELLANT R McGRADY: Your Honour - your Honour, I'd like to point out one more thing.

THE CHIEF JUSTICE: Yes, all right.

APPELLANT R McGRADY: That the witness, he never saw me or my brother on the scene - at the scene of the crime.

THE CHIEF JUSTICE: Right. Thank you. Although he gave evidence to the contrary of that, but I note what you say.

Mr Sandy conceded problems with his memory following the attack but denied having had previous problems, acknowledging, however, that over previous years he had substantially abused alcohol.

The learned Judge cautioned the jury quite comprehensively about the need to look critically at Mr Sandy's evidence, to be, as the Judge put it, "very, very careful indeed". There must, as his Honour said to the jury, "be dangers in being too quick to accept Mr Sandy's evidence".

The Judge drew attention to discrepancies within Mr Sandy's detailed accounts given at various times and properly directed the jury as to their possible significance. He reminded the jury also of Dr Hall's confirmation, in his evidence, that alcohol "classically affects memory". Notwithstanding this comprehensive caution, the jury accepted Mr Sandy's evidence.

On the other hand, the jury rejected Steven McGrady's evidence, excluding involvement on the part of his brother, the appellant. The Judge referred likewise to discrepancies within Steven's evidence and properly directed the jury as to the possible significance of those discrepancies and, in relation to Steven's credibility, as to Steven's past convictions for offences involving dishonesty and violence.

The jury were carefully instructed by the learned Judge as to their task and, in relation to their assessment of the conflicting evidence of the complainant and Steven McGrady, they were given orthodox directions as to the lack of significance…

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 McGrady

Details

AGLC: R v McGrady [2001] QCA 302
Case: [2001] QCA 302
Decision Date: 27 July 2001

CaseChat Overview and Summary

The Court of Appeal considered two cases, one an appeal against conviction and the other an appeal against sentence. In the first case, Raymond McGrady appealed his conviction for grievous bodily harm, contending that the jury's decision was unsafe and potentially biased. The crux of the appeal was the conflicting testimonies between the complainant, Mr Sandy, who claimed both Raymond and his brother Steven participated in the assault, and Steven, who claimed sole responsibility. Despite the trial judge's extensive warnings to the jury about the reliability of Mr Sandy's evidence due to his history of alcohol abuse, the jury accepted Mr Sandy's account and rejected Steven's. The Court found no error in the trial judge's instructions or in the jury's decision, affirming the conviction.

The second case involved the sentencing of both Raymond and Steven McGrady for grievous bodily harm. Steven had already pleaded guilty, while Raymond was convicted by a jury. Both brothers were sentenced to six years imprisonment. Steven appealed his sentence, arguing it was excessive and that the judge failed to adequately distinguish his role from Raymond's. The Court considered the circumstances of the crime, including the unprovoked nature, the involvement of weapons, and the brothers' extensive criminal histories. The Court held that while the sentence was substantial, it was not manifestly excessive given the gravity of the offence and the mitigating factors were not sufficient to warrant a lesser sentence. Both appeals were dismissed.

Orders