R v O - [2003] QCA 446

SUPREME COURT OF QUEENSLAND

CITATION:

R v O [2003] QCA 446

PARTIES:

R
v
O
(appellant)

FILE NO/S:

CA No 87 of 2002
DC No 1067 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

Orders made 17 September 2003
Reasons delivered 17 October 2003

DELIVERED AT:

Brisbane

HEARING DATE:

17 September 2003

JUDGES:

McMurdo P, Davies and Jerrard JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal allowed
2. Set aside the conviction
3. New trial ordered
4. Appellant’s bail is extended

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST CONVICTION RECORDED ON PLEA OF GUILTY – PARTICULAR CASES – where appellant and husband charged jointly for offences concerning injuries to their infant - where appellant pleaded guilty to grievous bodily harm and assault occasioning bodily harm – where appellant suffered severe post natal depression – where fresh evidence has become available since conviction suggesting appellant’s husband is perpetrator of offences – whether circumstances permit for such evidence to be received by the courts – whether it meets the stringent test set down in R v Gallagher (1986) 160 CLR 392 - whether failure to set aside plea of guilty would result in miscarriage of justice

R v Gallagher (1986) 160 CLR 392, followed
McKenzie (2000) 113 A Crim R 534, followed
Meissner v R (1994-1995) 184 CLR 132, followed

COUNSEL:

M J Byrne QC for the appellant
L J Clare for the respondent

SOLICITORS:

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

McMURDO P: The appellant was charged jointly with her husband on an indictment presented in the District Court for offences concerning injuries to their baby son when he was aged between six and eight weeks in September 2000. On 26 July 2001 she pleaded guilty to one count of grievous bodily harm and one count of assault occasioning bodily harm. Her husband pleaded guilty to one count of failing to supply necessaries. Their sentence was adjourned and the appellant was remanded in custody whilst her husband’s bail was enlarged. On 17 August 2001 the appellant was sentenced to an effective sentence of six years imprisonment with a recommendation for parole after 18 months. A declaration was made that 23 days in pre-sentence custody was time already served under the sentence. On 24 May 2002 this court granted the appellant an extension of time in which to appeal against her conviction. She was granted bail on 19 June 2002 after serving 11 months imprisonment under her sentence.

The appellant sought orders from this court allowing the appeal, setting aside the conviction and for a new trial. A plea of guilty entered in open court by a person of full age, apparently sound mind and understanding, even if that person is not in truth guilty of the offence, will not ordinarily…

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 O

Details

AGLC: R v O [2003] QCA 446
Case: [2003] QCA 446
Decision Date: 17 October 2003

CaseChat Overview and Summary

The appellant, in conjunction with her husband, was charged with offences related to injuries inflicted on their infant. The appellant pleaded guilty to charges of grievous bodily harm and assault occasioning bodily harm, while her husband was acquitted. The appellant subsequently appealed against her conviction, arguing that she suffered from severe post-natal depression at the time of the offences and that new evidence had emerged suggesting her husband was the actual perpetrator. The legal issue before the court was whether the new evidence could be considered and whether it satisfied the stringent criteria for overturning a guilty plea established in R v Gallagher.

The court found that the new evidence met the high threshold for setting aside a guilty plea as outlined in R v Gallagher. The evidence was not only new but also compelling, suggesting that the appellant's husband, rather than the appellant, was responsible for the injuries. The court concluded that the failure to consider the new evidence would result in a miscarriage of justice, as the appellant had entered a guilty plea under the influence of severe post-natal depression, which impaired her ability to make a sound decision. Consequently, the appeal was allowed, the conviction set aside, and a new trial ordered.

In light of the decision to order a new trial, the court extended the appellant's bail, ensuring she remains available for the retrial. This decision underscores the importance of considering the mental state of an accused person at the time of their plea and the potential for new evidence to significantly alter the circumstances of a case. The court's ruling reinforces the principle that justice should not be final if new evidence suggests a miscarriage of justice.

Orders

Orders of the court

1. Appeal allowed

2. Set aside the conviction

3. New trial ordered

4. Appellant’s bail is extended

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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CITATION:	R v O [2003] QCA 446
PARTIES:	R v O (appellant)
FILE NO/S:	CA No 87 of 2002 DC No 1067 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	Orders made 17 September 2003 Reasons delivered 17 October 2003
DELIVERED AT:	Brisbane
HEARING DATE:	17 September 2003
JUDGES:	McMurdo P, Davies and Jerrard JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal allowed 2. Set aside the conviction 3. New trial ordered 4. Appellant’s bail is extended
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST CONVICTION RECORDED ON PLEA OF GUILTY – PARTICULAR CASES – where appellant and husband charged jointly for offences concerning injuries to their infant - where appellant pleaded guilty to grievous bodily harm and assault occasioning bodily harm – where appellant suffered severe post natal depression – where fresh evidence has become available since conviction suggesting appellant’s husband is perpetrator of offences – whether circumstances permit for such evidence to be received by the courts – whether it meets the stringent test set down in R v Gallagher (1986) 160 CLR 392 - whether failure to set aside plea of guilty would result in miscarriage of justice R v Gallagher (1986) 160 CLR 392, followed McKenzie (2000) 113 A Crim R 534, followed Meissner v R (1994-1995) 184 CLR 132, followed
COUNSEL:	M J Byrne QC for the appellant L J Clare for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent