R v O'Neill - [2009] QCA 210

SUPREME COURT OF QUEENSLAND

CITATION:

R v O’Neill [2009] QCA 210

PARTIES:

R
v
O’NEILL, Susan Elaine
(appellant)

FILE NO/S:

CA No 216 of 2008
DC No 54 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

24 July 2009

DELIVERED AT:

Brisbane

HEARING DATE:

25 May 2009

JUDGES:

Holmes JA, McMurdo and Applegarth JJ
Separate reasons for judgment of each member of the Court, McMurdo J and Applegarth J concurring as to the order made, Holmes JA dissenting

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – where the complainant approached the appellant at her house and covertly video recorded their exchange for a commercial television program – where the jury found that the appellant struck the victim with a knife – whether it was open to the jury to find that the defence of dwelling defence was not open on the facts – whether the trial judge erred by not putting the defence of premises against trespassers defence to the jury – whether this amounted to a miscarriage of justice – whether jury’s verdict unreasonable

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – where the trial judge gave leave for a witness to give evidence by phone – where the defence submitted that it was important that the jury see the witness’ demeanour – whether the trial judge’s discretion miscarried in permitting the witness to give evidence by phone

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – IRREGULARITIES IN RELATION TO JURY – OTHER CASES – where the exchange between appellant and the complainant was covertly video recorded – where video tape contained other material that did not become part of the exhibit – where only the part of the video recording constituting the exhibit was shown to the jury during the trial – whether the whole of the video tape went with the jury into the jury room – whether this amounted to a miscarriage of justice – whether trial judge erred in not showing the jury the whole video tape

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – where trial judge did not adjourn to allow the appellant to call her son as a witness – where no evidence of a request to adjourn – where appellant claims that an adjournment was requested by counsel, however no record of it appears on the transcript – whether the trial judge erred in failing to adjourn

Criminal Code 1899 (Qld), s 1, s 267, s 277
Criminal Practice Rules 1999 (Qld), r 53

R v Wilson[2008] QCA 349, cited

COUNSEL:

The appellant appeared on her own behalf
M J Copley SC for the respondent

SOLICITORS:

The appellant appeared on her own behalf
Director of Public Prosecutions (Queensland) for the respondent

HOLMES JA: I have had the advantage of reading the…

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'Neill

Details

AGLC: R v O'Neill [2009] QCA 210
Case: [2009] QCA 210
Decision Date: 24 July 2009

CaseChat Overview and Summary

The appellant, O'Neill, appealed against his conviction for assault occasioning actual bodily harm, arguing multiple grounds for a new trial. The complainant had covertly recorded an encounter at O'Neill's residence for a television program, and the jury found that O'Neill had struck the complainant with a knife. O'Neill contended that the trial judge had erred in not directing the jury on the defence of premises against trespassers, that the judge misdirected the jury by permitting a witness to give evidence via phone, and that the judge had erred in not showing the entire video recording to the jury. O'Neill also argued that the trial judge erred by not adjourning to allow him to call his son as a witness.

The court considered whether the jury's verdict was unreasonable or insupportable, given the evidence presented. It also examined whether the trial judge had misdirected the jury by allowing a witness to give evidence over the phone and whether the judge's failure to show the entire video tape to the jury was an error. Additionally, the court assessed whether the trial judge's decision not to adjourn the trial was correct, in light of the appellant's claim that an adjournment was requested but not recorded in the transcript.

The court found that the trial judge's directions to the jury were sufficient, and the evidence supported the jury's verdict. The court determined that the judge's discretion in permitting the witness to give evidence by phone was not miscarried, and the partial showing of the video recording to the jury did not amount to a miscarriage of justice. Furthermore, the court held that there was no error in the judge's decision not to adjourn the trial, as there was no evidence of a request to adjourn. Consequently, the appeal was dismissed.

The court ordered that the appeal be dismissed, affirming O'Neill's conviction. The findings regarding the trial judge's directions, the evidence presented, and the procedural aspects of the trial were upheld, leading to the conclusion that no miscarriage of justice had occurred.

Orders

Orders of the court

Appeal 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 O’Neill [2009] QCA 210
PARTIES:	R v O’NEILL, Susan Elaine (appellant)
FILE NO/S:	CA No 216 of 2008 DC No 54 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	24 July 2009
DELIVERED AT:	Brisbane
HEARING DATE:	25 May 2009
JUDGES:	Holmes JA, McMurdo and Applegarth JJ Separate reasons for judgment of each member of the Court, McMurdo J and Applegarth J concurring as to the order made, Holmes JA dissenting
ORDER:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – where the complainant approached the appellant at her house and covertly video recorded their exchange for a commercial television program – where the jury found that the appellant struck the victim with a knife – whether it was open to the jury to find that the defence of dwelling defence was not open on the facts – whether the trial judge erred by not putting the defence of premises against trespassers defence to the jury – whether this amounted to a miscarriage of justice – whether jury’s verdict unreasonable CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – where the trial judge gave leave for a witness to give evidence by phone – where the defence submitted that it was important that the jury see the witness’ demeanour – whether the trial judge’s discretion miscarried in permitting the witness to give evidence by phone CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – IRREGULARITIES IN RELATION TO JURY – OTHER CASES – where the exchange between appellant and the complainant was covertly video recorded – where video tape contained other material that did not become part of the exhibit – where only the part of the video recording constituting the exhibit was shown to the jury during the trial – whether the whole of the video tape went with the jury into the jury room – whether this amounted to a miscarriage of justice – whether trial judge erred in not showing the jury the whole video tape CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – where trial judge did not adjourn to allow the appellant to call her son as a witness – where no evidence of a request to adjourn – where appellant claims that an adjournment was requested by counsel, however no record of it appears on the transcript – whether the trial judge erred in failing to adjourn Criminal Code 1899 (Qld), s 1, s 267, s 277 Criminal Practice Rules 1999 (Qld), r 53 R v Wilson[2008] QCA 349, cited
COUNSEL:	The appellant appeared on her own behalf M J Copley SC for the respondent
SOLICITORS:	The appellant appeared on her own behalf Director of Public Prosecutions (Queensland) for the respondent