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R v Messent

R v Messent

Case [2011] QCA 125 17 June 2011

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Messent [2011] QCA 125

PARTIES:

R
v
MESSENT, Keith Hans
(applicant/appellant)

FILE NO/S:

CA No 134 of 2010
DC No 1037 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

17 June 2011

DELIVERED AT:

Brisbane

HEARING DATE:

12 May 2011

JUDGES:

Margaret McMurdo P, Fraser and White JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal against conviction dismissed.

2. Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – ACCIDENT – DIRECTIONS TO JURY – where the appellant was charged with unlawfully doing grievous bodily harm – where the appellant threw a glass bottle towards the complainant from a short distance causing injury – whether the primary judge failed to direct adequately the jury in relation to accident under s 23(1)(b) Criminal Code

CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – DEFENCE OF PERSONS OR PROPERTY – DIRECTIONS TO JURY – whether the primary judge failed to direct adequately the jury in relation to self-defence under s 271(1), s 271(2) and s 272 Criminal Code

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was sentenced to five years imprisonment with parole eligibility after serving two and a half years – whether the sentence was manifestly excessive

Criminal Code 1899 (Qld), s 7, s 8, s 23(1)(b), s 245, s 268, s 269, s 271, s 272

Kaporonovski v The Queen (1973) 133 CLR 209; [1973] HCA 35, cited
R v Amituanai (1995) 78 A Crim R 588; [1995] QCA 80, cited
R v Berryman (2005) 159 A Crim R 65; [2005] QCA 471, considered
R v Bierton[2009] QCA 68, considered
R v Bojovic [2000] 2 Qd R 183; [1999] QCA 206, cited
R v Bryan; ex parte A-G (Qld) (2003) 137 A Crim R 489; [2003] QCA 18, considered
R v Dean[2009] QCA 309, cited
R v Dietz[2009] QCA 392, cited
R v Gray (1998) 98 A Crim R 589; [1998] QCA 41, considered
R v Johnston[2004] QCA 12, cited
R v Lacey; ex parte A-G (Qld) (2009) 197 A Crim R 399; [2009] QCA 274, cited
R v Prow [1990] 1 Qd R 64, cited
R v Stuart[2005] QCA 138, cited
R v Thomason; ex parte A-G (Qld)[2011] QCA 9, considered
R v Verheyen[2008] QCA 150, considered

R v Vidler (2000) 110 A Crim R 77; [2000] QCA 63, cited
R v Wilmot (2006) 165 A Crim R 14; [2006] QCA 91, cited
R v Young (2004) 142 A Crim R 571; [2004] QCA 84, cited

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 Messent

Details

AGLC: R v Messent [2011] QCA 125
Case: [2011] QCA 125
Decision Date: 17 June 2011

CaseChat Overview and Summary

The appellant, Messent, appealed against his conviction and sentence for unlawfully causing grievous bodily harm. The incident arose when the appellant threw a glass bottle at the complainant, causing injury. The matter was heard in the court of appeal. The appeal raised two main issues: whether the trial judge failed to adequately direct the jury on the defence of accident under section 23(1)(b) of the Criminal Code and whether the trial judge failed to adequately direct the jury on the defence of self-defence under sections 271(1), 271(2) and 272 of the Criminal Code. Additionally, the appeal challenged the sentence as manifestly excessive.

The court found that the trial judge did not err in the directions given to the jury regarding the defence of accident. The court held that the directions were sufficient to allow the jury to properly consider the defence. The court also found that the trial judge adequately directed the jury on the defence of self-defence, ensuring the jury understood the requirements and limitations of the defence. The court concluded that the directions were clear and comprehensive, leaving the jury with no reason to doubt the correctness of the law as applied to the facts of the case. As for the sentence, the court found that the sentence was not manifestly excessive, taking into account the gravity of the offence and the appellant's criminal history.

The appeal against the conviction was dismissed, and the application for leave to appeal against the sentence was refused. The court upheld the conviction and sentence imposed by the primary judge. The reasoning and outcome of the appeal confirmed the adequacy of the jury directions and the proportionality of the sentence. The final orders were that the appeal against conviction was dismissed and the application for leave to appeal against sentence was refused.

Orders

Orders of the court

1. Appeal against conviction dismissed.

2. Application for leave to appeal against sentence refused.

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.

Actions

Citations

R v Messent [2011] QCA 125

Most Recent Citation

R v McMartin [2013] QCA 339

Cases Citing This Decision

R v McMartin [2013] QCA 339
Citation 1 (Para 1)

…self-defence to s 271 and not directing on s 272 were appropriate: see R v Craig [28] and R v Messent .[29] [28][1998] QCA 277, [19] (Thomas JA). [29][2011] QCA 125, [29], [30].…

See all citing cases →

Cases Cited

R v Thomason; ex parte A-G (Qld) [2011] QCA 9
Citation 1 (Para 1)

…A-G (Qld) [58]; R v Bryan; ex parte A-G (Qld) [59]; R v Dietz [60] and R v Johnston [61], but the latter was not a relevant comparable sentence. [58][2011] QCA 9. [59][2003] QCA 18. [60][2009] QCA 392. [61][2004] QCA 12.…
R v Dietz [2009] QCA 392
Citation 2 (Para 1)

…A-G (Qld) [59]; R v Dietz [60] and R v Johnston [61], but the latter was not a relevant comparable sentence. [58][2011] QCA 9. [59][2003] QCA 18. [60][2009] QCA 392. [61][2004] QCA 12.…
R v Dean [2009] QCA 309
Citation 3 (Para 1)

…ng of “provoked” as defined in s 268. This was confirmed in R v Dean .[33] [32][1990] 1 Qd R 64 per Shepherdson J at 86 and Williams J at 88. [33][2009] QCA 309 per Fraser JA at [25].…
R v Lacey; ex parte Attorney-General [2009] QCA 274
Citation 4 (Para 1)

…the respondent was resentenced to six years imprisonment with a declaration that he had been convicted of a serious violent offence. [62][2009] QCA 274.…
R v Bierton [2009] QCA 68
Citation 5 (Para 1)

…ing and resulted in no cognitive deficits, as is the case here, and the applicant had pleaded guilty. [53][2005] QCA 471. [54][2008] QCA 150. [55][2009] QCA 68.…
R v Verheyen [2008] QCA 150
Citation 6 (Para 1)

…re not life threatening and resulted in no cognitive deficits, as is the case here, and the applicant had pleaded guilty. [53][2005] QCA 471. [54][2008] QCA 150. [55][2009] QCA 68.…
R v Wilmot [2006] QCA 91
Citation 7

…CA 150, considered R v Vidler (2000) 110 A Crim R 77; [2000] QCA 63, cited R v Wilmot (2006) 165 A Crim R 14; [2006] QCA 91, cited R v Young (2004) 142 A Crim R 571; [2004] QCA 84, cited COUNSEL: J J Allen for the appellant D Meredith for the respondent SOLICITORS: Legal Aid Queensland for the appellant Director…
R v Berryman [2005] QCA 471
Citation 8 (Para 1)

…y the complainant were not life threatening and resulted in no cognitive deficits, as is the case here, and the applicant had pleaded guilty. [53][2005] QCA 471. [54][2008] QCA 150. [55][2009] QCA 68.…
R v Stuart [2005] QCA 138
Citation 9

…ex parte A-G (Qld) (2009) 197 A Crim R 399; [2009] QCA 274, cited R v Prow [1990] 1 Qd R 64, cited R v Stuart [2005] QCA 138, cited R v Thomason; ex parte A-G (Qld) [2011] QCA 9, considered R v Verheyen [2008] QCA 150, considered R v Vidler (2000) 110 A Crim R 77; [2000] QCA 63, cited R v Wilmot (2006) 165 A Crim…
R v Young [2004] QCA 84
Citation 10

…000] QCA 63, cited R v Wilmot (2006) 165 A Crim R 14; [2006] QCA 91, cited R v Young (2004) 142 A Crim R 571; [2004] QCA 84, cited COUNSEL: J J Allen for the appellant D Meredith for the respondent SOLICITORS: Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent…
R v Johnston [2004] QCA 12
Citation 11 (Para 1)

…Dietz [60] and R v Johnston [61], but the latter was not a relevant comparable sentence. [58][2011] QCA 9. [59][2003] QCA 18. [60][2009] QCA 392. [61][2004] QCA 12.…
R v Bryan; ex parte Attorney-General [2003] QCA 18
Citation 12 (Para 1)

…v Bryan; ex parte A-G (Qld) [59]; R v Dietz [60] and R v Johnston [61], but the latter was not a relevant comparable sentence. [58][2011] QCA 9. [59][2003] QCA 18. [60][2009] QCA 392. [61][2004] QCA 12.…
R v Vidler [2000] QCA 63
Citation 13

…A-G (Qld) [2011] QCA 9, considered R v Verheyen [2008] QCA 150, considered R v Vidler (2000) 110 A Crim R 77; [2000] QCA 63, cited R v Wilmot (2006) 165 A Crim R 14; [2006] QCA 91, cited R v Young (2004) 142 A Crim R 571; [2004] QCA 84, cited COUNSEL: J J Allen for the appellant D Meredith for the respondent SOL…
R v Bojovic [1999] QCA 206
Citation 14

…A Crim R 65; [2005] QCA 471, considered R v Bierton [2009] QCA 68, considered R v Bojovic [2000] 2 Qd R 183; [1999] QCA 206, cited R v Bryan; ex parte A-G (Qld) (2003) 137 A Crim R 489; [2003] QCA 18, considered R v Dean [2009] QCA 309, cited R v Dietz [2009] QCA 392, cited R v Gray (1998) 98 A Crim R 589; [1998…
R v Gray [1998] QCA 41
Citation 15

…8, considered R v Dean [2009] QCA 309, cited R v Dietz [2009] QCA 392, cited R v Gray (1998) 98 A Crim R 589; [1998] QCA 41, considered R v Johnston [2004] QCA 12, cited R v Lacey; ex parte A-G (Qld) (2009) 197 A Crim R 399; [2009] QCA 274, cited R v Prow [1990] 1 Qd R 64, cited R v Stuart [2005] QCA 138, cited…
R v Amituanai [1995] QCA 80
Citation 16

…s 272 Kaporonovski v The Queen (1973) 133 CLR 209; [1973] HCA 35, cited R v Amituanai (1995) 78 A Crim R 588; [1995] QCA 80, cited R v Berryman (2005) 159 A Crim R 65; [2005] QCA 471, considered R v Bierton [2009] QCA 68, considered R v Bojovic [2000] 2 Qd R 183; [1999] QCA 206, cited R v Bryan; ex parte A-G (Ql…
Kaporonovski v The Queen [1973] HCA 35
Citation 17

…9 (Qld), s 7, s 8, s 23(1)(b), s 245, s 268, s 269, s 271, s 272 Kaporonovski v The Queen (1973) 133 CLR 209; [1973] HCA 35, cited R v Amituanai (1995) 78 A Crim R 588; [1995] QCA 80, cited R v Berryman (2005) 159 A Crim R 65; [2005] QCA 471, considered R v Bierton [2009] QCA 68, considered R v Bojovic [2000] 2…

Legislation Cited

No legislation cited in this judgment.

CITATION:	R v Messent [2011] QCA 125
PARTIES:	R v MESSENT, Keith Hans (applicant/appellant)
FILE NO/S:	CA No 134 of 2010 DC No 1037 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	17 June 2011
DELIVERED AT:	Brisbane
HEARING DATE:	12 May 2011
JUDGES:	Margaret McMurdo P, Fraser and White JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal against conviction dismissed. 2. Application for leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – ACCIDENT – DIRECTIONS TO JURY – where the appellant was charged with unlawfully doing grievous bodily harm – where the appellant threw a glass bottle towards the complainant from a short distance causing injury – whether the primary judge failed to direct adequately the jury in relation to accident under s 23(1)(b) Criminal Code CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – DEFENCE OF PERSONS OR PROPERTY – DIRECTIONS TO JURY – whether the primary judge failed to direct adequately the jury in relation to self-defence under s 271(1), s 271(2) and s 272 Criminal Code CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was sentenced to five years imprisonment with parole eligibility after serving two and a half years – whether the sentence was manifestly excessive Criminal Code 1899 (Qld), s 7, s 8, s 23(1)(b), s 245, s 268, s 269, s 271, s 272 Kaporonovski v The Queen (1973) 133 CLR 209; [1973] HCA 35, cited R v Amituanai (1995) 78 A Crim R 588; [1995] QCA 80, cited R v Berryman (2005) 159 A Crim R 65; [2005] QCA 471, considered R v Bierton[2009] QCA 68, considered R v Bojovic [2000] 2 Qd R 183; [1999] QCA 206, cited R v Bryan; ex parte A-G (Qld) (2003) 137 A Crim R 489; [2003] QCA 18, considered R v Dean[2009] QCA 309, cited R v Dietz[2009] QCA 392, cited R v Gray (1998) 98 A Crim R 589; [1998] QCA 41, considered R v Johnston[2004] QCA 12, cited R v Lacey; ex parte A-G (Qld) (2009) 197 A Crim R 399; [2009] QCA 274, cited R v Prow [1990] 1 Qd R 64, cited R v Stuart[2005] QCA 138, cited R v Thomason; ex parte A-G (Qld)[2011] QCA 9, considered R v Verheyen[2008] QCA 150, considered R v Vidler (2000) 110 A Crim R 77; [2000] QCA 63, cited R v Wilmot (2006) 165 A Crim R 14; [2006] QCA 91, cited R v Young (2004) 142 A Crim R 571; [2004] QCA 84, cited