R v McGrory - [2011] QCA 140

SUPREME COURT OF QUEENSLAND

CITATION:

R v McGrory [2011] QCA 140

PARTIES:

R
v
McGRORY, Holly Anne
(appellant)

FILE NO/S:

CA No 309 of 2010
DC No 541 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Gympie

DELIVERED ON:

24 June 2011

DELIVERED AT:

Brisbane

HEARING DATE:

1 June 2011

JUDGES:

Muir and Fraser JJA and Fryberg J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL –VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted of one count of assault occasioning bodily harm while in company – where the appellant was acquitted of one count of burglary by breaking, in the night, in company and two counts of common assault – where the appellant submitted that her conviction was unreasonable and inconsistent with her acquittal in respect of the burglary offence – whether the jury’s verdict was reasonable having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the primary judge directed the jury that, unless they accepted that the incident occurred in the way the complainant said, they should acquit the appellant – where the appellant argued that the primary judge failed to direct the jury on self defence in respect of the offence of assault occasioning bodily harm – whether the primary judge should have directed the jury expressly on the application of self defence – whether the primary judge’s directions gave rise to a miscarriage of justice

Criminal Code 1899 (Qld), s 271(1), s 339, s 419

MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, considered
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, considered
R v Kirkman (1987) 44 SASR 591, cited

Stevens v The Queen (2005) 227 CLR 319; [2005] HCA 65, distinguished

COUNSEL:

S Hamlyn-Harris for the appellant
R G Martin SC for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

[1] MUIR JA: Introduction

The appellant was convicted after a trial in the District Court of assault occasioning bodily harm while in company (count 2). She had been acquitted of burglary by breaking, in the night, in company (count 1) and of common assault (counts 3 and 4). She was charged jointly with her father, Michael McGrory, on all four counts. She appeals on grounds that her conviction on count 2 is unreasonable and inconsistent with her acquittal in count 1 and that a miscarriage of justice resulted from the failure of the primary judge to direct the jury on self defence in relation to count 2.

[2] Before discussing the grounds of appeal it is useful to provide a brief discussion of the evidence.

The relevant evidence

[3] 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.

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Details

Case: [2011] QCA 140
Decision Date: 24 June 2011

CaseChat Overview and Summary

In the case of R v McGrory, the appellant was convicted of assault occasioning bodily harm while in company, but acquitted of burglary and two counts of common assault. The appellant contested the reasonableness of her conviction, particularly in light of her acquittal on the burglary charge, and argued that the jury's verdict was inconsistent with the evidence presented. Additionally, the appellant claimed that the primary judge erred in not directing the jury on self-defence in relation to the assault charge and that the judge’s directions led to a miscarriage of justice.

The court considered whether the jury’s verdict was reasonable given the evidence and whether the primary judge’s failure to direct the jury on self-defence amounted to a misdirection or non-direction that prejudiced the appellant’s case. The court assessed the legal principles governing the assessment of the reasonableness of a jury’s verdict and the requirements for a jury direction on self-defence. It examined whether the primary judge’s instructions to the jury were adequate and whether the lack of an explicit direction on self-defence could have influenced the verdict.

Upon reviewing the evidence and the legal principles, the court determined that the jury's verdict was reasonable and not inconsistent with the appellant’s acquittal on the burglary charge. The court found that the primary judge’s directions to the jury, while not expressly mentioning self-defence, did not prejudice the appellant’s case. Consequently, the court concluded that the primary judge’s directions did not give rise to a miscarriage of justice. The appeal was dismissed, and the conviction for assault occasioning bodily harm while in company was upheld.

The court ordered that the appeal be dismissed, maintaining the conviction for the offence of assault occasioning bodily harm while in company. The acquittals on the charges of burglary and common assault were affirmed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v McGrory [2011] QCA 140
PARTIES:	R v McGRORY, Holly Anne (appellant)
FILE NO/S:	CA No 309 of 2010 DC No 541 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Gympie
DELIVERED ON:	24 June 2011
DELIVERED AT:	Brisbane
HEARING DATE:	1 June 2011
JUDGES:	Muir and Fraser JJA and Fryberg J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL –VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted of one count of assault occasioning bodily harm while in company – where the appellant was acquitted of one count of burglary by breaking, in the night, in company and two counts of common assault – where the appellant submitted that her conviction was unreasonable and inconsistent with her acquittal in respect of the burglary offence – whether the jury’s verdict was reasonable having regard to the evidence CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the primary judge directed the jury that, unless they accepted that the incident occurred in the way the complainant said, they should acquit the appellant – where the appellant argued that the primary judge failed to direct the jury on self defence in respect of the offence of assault occasioning bodily harm – whether the primary judge should have directed the jury expressly on the application of self defence – whether the primary judge’s directions gave rise to a miscarriage of justice Criminal Code 1899 (Qld), s 271(1), s 339, s 419 MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, considered MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, considered R v Kirkman (1987) 44 SASR 591, cited Stevens v The Queen (2005) 227 CLR 319; [2005] HCA 65, distinguished
COUNSEL:	S Hamlyn-Harris for the appellant R G Martin SC for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent