R v O'Rourke - [2003] QCA 220

SUPREME COURT OF QUEENSLAND

CITATION:

R v O’Rourke [2003] QCA 220

PARTIES:

R
v
O’ROURKE, Lachlan Maurice
(applicant/appellant)

FILE NO:

CA No 38 of 2003

DC No 2325 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction and Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

6 June 2003

DELIVERED AT:

Brisbane

HEARING DATE:

26 May 2003

JUDGES:

McPherson JA, White and Wilson JJ

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – JOINT TRIAL OF SEVERAL PERSONS – where application for separate trials rejected – where application made after change in legal representation for the appellant – whether trial judge erred in law by refusing to order a separate trial

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE EVIDENCE CIRCUMSTANTIAL – where appellant convicted on one count of grievous bodily harm – where witnesses gave conflicting reports – whether verdict unsafe or unsatisfactory

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENCE – where applicant convicted of one count of grievous bodily harm – where sentenced to three years’ imprisonment – where applicant seeks leave to appeal against sentence – where applicant has criminal history – where unprovoked attack on someone previously unknown to applicant – whether the sentence imposed was manifestly excessive

M v The Queen (1994) 181 CLR 487, applied
R v Elliott [2001] QCA 507; CA No 168 of 2001, 14 November 2001, considered
R v Richmond [1997] QCA 321; CA No 233 of 1997, 17 July 1997, considered
R v Weare [2002] QCA 183; CA No 54 of 2002, 31 May 2002, distinguished
Webb & Hay v The Queen (1994) 181 CLR 41, applied

COUNSEL:

R Clifford for the appellant
D A Holliday for the respondent

SOLICITORS:

Lake Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

MCPHERSON JA: I agree with the reasons of Wilson J for dismissing this appeal against conviction. I also agree with her Honour’s reasons for refusing the application to appeal against sentence.

WHITE J: I have read the reasons for judgment of Wilson J and agree with her Honour that the appeal against conviction should be dismissed and the application for leave to appeal against sentence should be refused.

WILSON J: Lachlan Maurice O’Rourke was found guilty of having unlawfully done grievous bodily harm to Jason Gary Iselin. He was sentenced to 3 years imprisonment. This is an appeal against his conviction and an application for leave to appeal against the sentence.

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'Rourke

Details

AGLC: R v O'Rourke [2003] QCA 220
Case: [2003] QCA 220
Decision Date: 6 June 2003

CaseChat Overview and Summary

In the case of R v O'Rourke, the appellant was convicted of grievous bodily harm and sentenced to three years in prison. The appellant sought to appeal against both the conviction and the sentence. The appeal centred on several grounds, including the trial judge's refusal to order a separate trial, the sufficiency of the evidence, and the appropriateness of the sentence. The appellant argued that the trial judge erred in not granting a separate trial after a change in legal representation and that the conviction was unsafe and unsatisfactory due to conflicting witness statements. Additionally, the appellant contended that the sentence was manifestly excessive given the circumstances of the offence and the appellant's criminal history.

The court examined whether the trial judge erred in denying a separate trial after the change in legal representation. It was noted that the application for a separate trial came late in the proceedings, and the judge had sound reasons to believe that a joint trial would not prejudice the appellant. The court also considered the sufficiency of the evidence, noting that while there were conflicting reports from witnesses, the jury was entitled to resolve these inconsistencies and the conviction was open to them based on the evidence presented. The court found no basis to interfere with the jury's verdict. Regarding the sentence, the court assessed the severity of the crime and the appellant's criminal history but concluded that the sentence was within the range of appropriate penalties for the offence.

The appeal against the conviction was dismissed as the court found no legal error in the trial judge's refusal to order a separate trial and upheld the sufficiency of the evidence supporting the conviction. The application for leave to appeal against the sentence was also refused, as the court deemed the sentence appropriate given the nature and circumstances of the offence. The court's final orders were to dismiss the appeal against conviction and to refuse leave to appeal against the sentence.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence refused

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’Rourke [2003] QCA 220
PARTIES:	R v O’ROURKE, Lachlan Maurice (applicant/appellant)
FILE NO:	CA No 38 of 2003 DC No 2325 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction and Sentence
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	6 June 2003
DELIVERED AT:	Brisbane
HEARING DATE:	26 May 2003
JUDGES:	McPherson JA, White and Wilson JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal against conviction dismissed 2. Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – JOINT TRIAL OF SEVERAL PERSONS – where application for separate trials rejected – where application made after change in legal representation for the appellant – whether trial judge erred in law by refusing to order a separate trial CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE EVIDENCE CIRCUMSTANTIAL – where appellant convicted on one count of grievous bodily harm – where witnesses gave conflicting reports – whether verdict unsafe or unsatisfactory CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENCE – where applicant convicted of one count of grievous bodily harm – where sentenced to three years’ imprisonment – where applicant seeks leave to appeal against sentence – where applicant has criminal history – where unprovoked attack on someone previously unknown to applicant – whether the sentence imposed was manifestly excessive M v The Queen (1994) 181 CLR 487, applied R v Elliott [2001] QCA 507; CA No 168 of 2001, 14 November 2001, considered R v Richmond [1997] QCA 321; CA No 233 of 1997, 17 July 1997, considered R v Weare [2002] QCA 183; CA No 54 of 2002, 31 May 2002, distinguished Webb & Hay v The Queen (1994) 181 CLR 41, applied
COUNSEL:	R Clifford for the appellant D A Holliday for the respondent
SOLICITORS:	Lake Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent