R v Mortimer - [2005] QCA 361

SUPREME COURT OF QUEENSLAND

CITATION:

R v Mortimer [2005] QCA 361

PARTIES:

R
v
MORTIMER, Glenn Kenneth
(applicant/appellant)

FILE NO/S:

CA No 164 of 2005
DC No 133 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Rockhampton

DELIVERED ON:

30 September 2005

DELIVERED AT:

Brisbane

HEARING DATE:

26 September 2005

JUDGES:

McPherson and Keane JJA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – OTHER MATTERS – where burglary in the night and assault occasioning bodily harm – identification evidence – self‑represented appellant put forward a different version of facts on appeal

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – offences of burglary in the night and assault occasioning bodily harm – whether sentence of imprisonment for two years and three months excessive

Criminal Code 1899 (Qld), s 419

COUNSEL:

The applicant/appellant appeared in person
M R Byrne for the respondent

SOLICITORS:

The applicant/appellant appeared in person
Director of Public Prosecutions (Queensland) for the respondent

McPHERSON JA: In May 2005 the appellant Glenn Mortimer was convicted after a trial in the District Court at Rockhampton of burglary in the night and assault occasioning bodily harm. The victim of the assault was a man named Russell Riley who was living in a house which at the time he shared with a Mrs Walker at no 4 Hardacre Street in Rockhampton. On the night or at about 4 am in the early morning of 11 July 2003, the appellant apparently entered the house where Riley was sleeping, began punching him in the face, dragged him out of bed, and kicked him breaking four of his ribs. At the trial, Dr Reynolds, who gave his evidence from the hospital records made after Riley was admitted to hospital, said Riley had suffered a ruptured spleen in the assault, as well as the broken ribs and bruises and injuries around the eyes. Riley was attended by a surgical team in hospital and discharged after seven days.

Because of the extent of the injuries the assault had originally been charged as one of causing grievous bodily harm; but the judge directed a verdict in favour of the appellant on this issue and the trial proceeded on the lesser count of occasioning bodily harm which the jury found proved.

Practically speaking, this left almost nothing in issue at the trial except for the critical question of the identity of the attacker. As to that, Riley said that he recognised the appellant when he woke up and found him assaulting him. He also said he…

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 Mortimer

Details

AGLC: R v Mortimer [2005] QCA 361
Case: [2005] QCA 361
Decision Date: 30 September 2005

CaseChat Overview and Summary

In the case of R v Mortimer, the appellant, represented without a legal advisor, challenged both his conviction and sentence. The appellant was convicted of burglary in the night and assault occasioning bodily harm, with the trial judge concluding that the appellant was the perpetrator based on identification evidence. The Court of Appeal was tasked with reviewing the appellant's claims that there was a miscarriage of justice due to the identification evidence and that the sentence was excessive.

The central legal issues revolved around the reliability and admissibility of the identification evidence and the proportionality of the sentence imposed. The appellant argued that the identification evidence was unreliable and should not have been admitted, thus leading to a miscarriage of justice. Additionally, the appellant contended that the sentence was excessive, given the circumstances of the case.

The Court of Appeal dismissed the appeal against the conviction, finding that the identification evidence was properly admitted and reliable. The Court held that the trial judge's assessment of the evidence was sound and that there was no miscarriage of justice. Regarding the sentence, the Court also dismissed the appeal, finding that the sentence was neither manifestly excessive nor inappropriate in the circumstances. The Court of Appeal concluded that the trial judge had exercised his discretion appropriately in imposing the sentence.

The Court of Appeal dismissed the appeal against the conviction and the application for leave to appeal against the sentence, upholding the original judgment and sentence.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence 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 Mortimer [2005] QCA 361
PARTIES:	R v MORTIMER, Glenn Kenneth (applicant/appellant)
FILE NO/S:	CA No 164 of 2005 DC No 133 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Rockhampton
DELIVERED ON:	30 September 2005
DELIVERED AT:	Brisbane
HEARING DATE:	26 September 2005
JUDGES:	McPherson and Keane JJA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	1. Appeal against conviction dismissed 2. Application for leave to appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – OTHER MATTERS – where burglary in the night and assault occasioning bodily harm – identification evidence – self‑represented appellant put forward a different version of facts on appeal CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – offences of burglary in the night and assault occasioning bodily harm – whether sentence of imprisonment for two years and three months excessive Criminal Code 1899 (Qld), s 419
COUNSEL:	The applicant/appellant appeared in person M R Byrne for the respondent
SOLICITORS:	The applicant/appellant appeared in person Director of Public Prosecutions (Queensland) for the respondent