R v Morton

[2001] QCA 240

SUPREME COURT OF QUEENSLAND

CITATION:

R v Morton [2001] QCA 240

PARTIES:

R
v
MORTON, Darren James
(appellant)

FILE NO/S:

CA No 49 of 2001
DC No 12 of 2000

DIVISION:

Court of Appeal Cairns Circuit

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Innisfail

DELIVERED ON:

22 June 2001

DELIVERED AT:

Cairns

HEARING DATE:

18 June 2001

JUDGES:

McMurdo P, Davies and Thomas JJA
Judgment of the Court

ORDER:

1.   Appeal allowed.

2.   Conviction set aside.

3.   Order for a new trial.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – OTHER MATTERS – where appellant charged with alternative offences of doing grievous bodily harm and of unlawful assault causing bodily harm as initial doubt as to whether injury constituted grievous bodily harm – where only question before jury became whether or not appellant was guilty of grievous bodily harm – whether trial judge erred in informing jury that the appellant would not be prosecuted again on any other charge – whether trial judge erred in refusing to direct jury that the question of what if any other charges may be brought against the appellant was irrelevant – whether trial judge erred in direction to jury in respect of s 272 of the Criminal Code

Criminal Code, s 272

Lucas v The Queen (1971) 120 CLR 171, considered
R v Maloney [2000] QCA 355; CA No 69 of 2000, 1 September 2000, considered

COUNSEL:

J D Henry for appellant
S G Bain for respondent

SOLICITORS:

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

1. THE COURT:  On 22 February last the appellant was convicted in the District Court at Innisfail of doing grievous bodily harm to Sharon Rose Wallace on 5 July 1999.  He was then sentenced to 18 months imprisonment.  He appeals against that conviction.

1. The complainant and the appellant had been in a de facto relationship for about three years.  They then separated but continued to see one another from time to time.  On the night before the commission of the offence the subject of this appeal they had slept together.

1. On the evening of the offence the complainant had cooked dinner and was consuming Lambrusco wine with a female friend.  The appellant, who had been drinking with a number of male friends in the house, joined them in drinking the Lambrusco after his male friends left.

1. The only evidence which the Court heard of the circumstances of the offence were from the complainant.  The appellant did not give evidence.  The only other witness at the trial was a medical practitioner on the question whether the complainant’s injury constituted grievous bodily harm.  The complainant’s evidence of those circumstances was as follows:

"Darren came in and leant on the kitchen bench … and then he started accusing me, saying to leave his brother alone.  I couldn't work out what he was going…