R v McGuren - [1996] QCA 511

[1996] QCA 511

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No 329 of 1996

Brisbane

[R. v. McGuren]

THE QUEEN

JOHN ALLEN McGUREN

Appellant

Davies JA
McPherson JA
Dowsett J

Judgment delivered 10 December 1996
Judgment of the Court

1. APPEAL AGAINST CONVICTION DISMISSED.

2.APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS:	CRIMINAL LAW - ATTEMPTED MURDER - appeal against conviction. Application for leave to appeal against sentence - domestic violence - intention to kill - safety of verdict - conduct of counsel - continuation of the trial after the disclosure by the complainant that the appellant had mentioned the possibility of his going back to jail.
Counsel:	Appellant appeared on his own behalf

Mr M Byrne Q.C. for the respondent

Solicitors:

Appellant appeared on his own behalf

Queensland Director of Public Prosecutions for the Crown

Hearing Date:

21 November 1996

IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND

C.A. No 329 of 1996

Brisbane

Before Davies JA

McPherson JA
Dowsett J

[R. v. McGuren]

THE QUEEN

JOHN ALLEN McGUREN

Appellant

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 10 December 1996

The appellant pleaded not guilty to one count of attempted murder with an alternative count of assault occasioning bodily harm and one count of entering a dwelling house in the night time with intent to commit an indictable offence. He was convicted of attempted murder, acquitted of burglary and sentenced to imprisonment for a period of six years. He had already spent 228 days in custody. The appellant was born on 25 July 1964 and was 31 years of age when the offence was allegedly committed on 7 October 1995.

The complainant on both counts was D who had been in a long-standing relationship with the appellant, by which they had two children. They had ceased to live together in October 1994, the children remaining with the complainant. In the year between their separation and the alleged offence, they had seen each other on a fairly regular basis. No doubt, this was partially attributable to the fact that the appellant visited the complainant to see his children. He was anxious to restore the relationship and it appears that the complainant was, at times, not entirely averse to that idea. On the day preceding the alleged offence, she met him at his place of employment to collect money which he owed her. They had lunch together and looked at furniture which he was contemplating buying. He agreed to care for her children that night so that she could go out socially, and so she picked him up after work and drove him to his caravan to collect some clothing. They went to her home where she commenced to prepare dinner for the children. She then went to her bedroom for a shower and to change. He followed her. It is sufficient to say that he made advances which she discouraged. She left him with the children and went with her sister,…

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 McGuren

Details

AGLC: R v McGuren [1996] QCA 511
Case: [1996] QCA 511
Decision Date: 10/12/1996

CaseChat Overview and Summary

In the matter of the Commonwealth versus McGuren, the appellant was convicted of attempted murder in the Supreme Court of Victoria. The conviction and sentence were the subject of an appeal and an application for leave to appeal against sentence, respectively. The appeal challenged the safety of the verdict, while the application for leave to appeal against sentence contended that the trial had been unfairly conducted due to the complainant's disclosure that the appellant had mentioned the possibility of returning to jail.

The legal issues that the Court of Appeal needed to decide were whether the verdict was unsafe due to the trial judge's handling of certain evidence, and whether the conduct of counsel or the circumstances surrounding the trial amounted to a miscarriage of justice. The appellant argued that the trial judge should have directed an acquittal on the basis that the evidence did not support an inference of the appellant's intention to kill. Additionally, the appellant submitted that the trial should have been adjourned after the complainant made the disclosure about the appellant's comments regarding the possibility of returning to jail.

The Court of Appeal found that the trial judge had properly directed the jury on the essential elements of the crime of attempted murder, including the requirement to prove the appellant's intention to kill. The court held that the trial judge had not erred in failing to direct an acquittal, as there was sufficient evidence for a reasonable jury to find the appellant guilty beyond reasonable doubt. The court also concluded that there was no miscarriage of justice in the continuation of the trial after the complainant's disclosure, as it did not prejudice the appellant or affect the fairness of the proceedings. The application for leave to appeal against sentence was dismissed.

No orders were made by the Court of Appeal with respect to the conviction, and the appeal against sentence was dismissed. The conviction and sentence of the appellant stood as determined by the Supreme Court of Victoria.

Orders