SUPREME COURT OF QUEENSLAND
CITATION:
R v Melling & Baldwin [2010] QCA 307
PARTIES:
R
v
MELLING, Henry Joseph
(appellant)R
v
BALDWIN, Allen Bruce
(appellant)FILE NO/S:
CA No 28 of 2010
CA No 47 of 2010
DC No 409 of 2009
DC No 408 of 2009DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction and Sentence
ORIGINATING COURT:
District Court at Ipswich
DELIVERED ON:
5 November 2010
DELIVERED AT:
Brisbane
HEARING DATE:
20 August 2010
JUDGES:
McMurdo P, Holmes JA and Applegarth J
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDERS:
1.The verdicts against each appellant of guilty of grievous bodily harm with intent are set aside;
2.A new trial is ordered on that count;
3.The sentence of eight years imprisonment imposed on each appellant in respect of the count of torture is set aside and a sentence of six years imprisonment is substituted;
4.The sentence of three years imprisonment imposed on each appellant in respect of the count of burglary is confirmed;
5.The sentence of three years imprisonment imposed on the appellant, Baldwin, in respect of three counts of arson, three counts of entry of premises with intent and one count of unlawful use of a motor vehicle is set aside;
6.Sentences of three years imprisonment are imposed on each of the counts of arson, and entry of premises with intent;
7.A sentence of six months imprisonment is imposed on the count of unlawful use of a motor vehicle;
8. The period of 750 days is declared as time already served under all sentences.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where appellants pleaded guilty to one count of torture and one count of burglary – where appellants pleaded not guilty to one count of doing grievous bodily harm with intent – where appellant sought instead to enter a plea of guilty to one count of grievous bodily harm simpliciter – where the Crown declined this plea in discharge of the indictment – where appellants tried and convicted of one count of doing grievous bodily harm with intent – where each of the three counts on the indictment referred, by way of margin note, to ss 7 and 8 of the Criminal Code 1899 (Qld) – where the Crown did not otherwise put the case on the basis of accessorial liability – where no direction as to accessorial liability was given by the learned trial judge – where counsel for the appellants argued that as the case was left to the jury, neither appellant could be convicted unless the jury were convinced of their guilt as a principal offender – where counsel for the appellants argued that, since there was no direct evidence as to when or by which of the appellants the grievous bodily harm was inflicted, it was impossible for the jury to convict either appellant beyond a reasonable doubt, because it was equally open that the…
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- AGLC
- R v Melling & Baldwin [2010] QCA 307
- Case
- [2010] QCA 307
- Decision Date
CaseChat Overview and Summary
The court found that there was a substantial miscarriage of justice in the conviction of grievous bodily harm with intent. The trial judge did not direct the jury on accessorial liability, despite the Crown's strong case for conviction on that basis. As a result, the appellants could not be convicted as principal offenders, given the lack of direct evidence as to who inflicted the grievous bodily harm. The court also held that the conviction on the count of grievous bodily harm with intent was unreasonable or insupportable, and a verdict of guilty for the simpliciter offence should be substituted. Furthermore, the court ruled that a telephone conversation and a remark overheard by a witness, implicating Melling, should not have been admitted against Baldwin, leading to a misdirection that may have caused a miscarriage of justice.
In light of these findings, the verdicts against each appellant of grievous bodily harm with intent were set aside, and a new trial was ordered on that count. The sentence of eight years for torture was deemed manifestly excessive and reduced to six years. The sentence for burglary was confirmed, while the sentence for arson, entry of premises with intent, and unlawful use of a motor vehicle imposed on Baldwin was adjusted to reflect appropriate penalties for each count. Finally, the court declared the period of 750 days as time already served under all sentences.
Orders
Orders of the court
1.The verdicts against each appellant of guilty of grievous bodily harm with intent are set aside;
2.A new trial is ordered on that count;
3.The sentence of eight years imprisonment imposed on each appellant in respect of the count of torture is set aside and a sentence of six years imprisonment is substituted;
4.The sentence of three years imprisonment imposed on each appellant in respect of the count of burglary is confirmed;
5.The sentence of three years imprisonment imposed on the appellant, Baldwin, in respect of three counts of arson, three counts of entry of premises with intent and one count of unlawful use of a motor vehicle is set aside;
6.Sentences of three years imprisonment are imposed on each of the counts of arson, and entry of premises with intent;
7.A sentence of six months imprisonment is imposed on the count of unlawful use of a motor vehicle;
8. The period of 750 days is declared as time already served under all sentences.
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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