R v Orreal - [2002] QCA 547

SUPREME COURT OF QUEENSLAND

CITATION:

R v Orreal [2002] QCA 547

PARTIES:

R
v
ORREAL, Jeffrey Mark

(appellant)

FILE NO/S:

CA No 296 of 2002

DC No 2017 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

19 December 2002

DELIVERED AT:

Brisbane

HEARING DATE:

6 December 2002

JUDGES:

McMurdo P, Helman and Philippides 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 – where appellant convicted of unlawful wounding after second trial – where appellant struck complainant on face with glass bottle – where witness for prosecution did not give evidence in first trial – where witness was a friend of complainant – whether failure to warn jury about circumstances in which witness came to give evidence – whether failure to warn jury about contradictions in prosecution evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL – OTHER IRREGULARITIES – where volume enhancing device used when appellant gave evidence – where trial judge intervened in questioning of certain witnesses – whether interventions adverse to appellant’s interests – whether conduct of trial oppressive to appellant

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSON – where appellant sentenced to 18 months imprisonment – whether manifestly excessive – whether failure to consider mitigating circumstances

COUNSEL:

B M Orreal with leave to appear on behalf of the appellant

B G Campbell for the respondent

SOLICITORS:

Director of Public Prosecutions (Queensland) for the respondent

McMURDO P: I agree that the appeal against conviction should be dismissed and the application for leave to appeal against sentence refused for the reasons given by Philippides J.

HELMAN J: I agree with the orders proposed by Philippides J and with her reasons.

PHILIPPIDES J:

Background facts

The appellant was charged with unlawfully doing grievous bodily harm and, in the alternative, with unlawful wounding. He was acquitted on the grievous bodily harm charge, but convicted on the wounding charge and sentenced to 18 months imprisonment.

The circumstances of the offence were that on 12 May 2000, the complainant, Ryan Combes, had attended a party at Bray Park. He left in the early hours of the following morning, intending to walk home. He crossed the road from the party and entered a park, where a group of young people had gathered. One of the group, Alicia Sutherland, the appellant’s girlfriend, and another girl were arguing.

The complainant’s evidence was that he laughed at Alicia. However, evidence was given by a…

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 Orreal

Details

AGLC: R v Orreal [2002] QCA 547
Case: [2002] QCA 547
Decision Date: 19 December 2002

CaseChat Overview and Summary

The appellant was convicted of unlawful wounding after a second trial. He had previously been convicted in a first trial which was quashed on appeal due to a misdirection of the jury by the trial judge. The prosecution alleged that the appellant had struck the complainant on the face with a glass bottle. The case against the appellant relied heavily on the testimony of a witness who did not give evidence in the first trial. This witness was a friend of the complainant. The appellant argued that the trial judge's failure to warn the jury about the circumstances in which the witness came to give evidence was a significant error. Furthermore, he contended that the trial judge should have warned the jury about contradictions in the prosecution's evidence. The appellant also raised issues about the use of a volume enhancing device when he gave evidence and the trial judge's interventions in the questioning of certain witnesses. He claimed that these interventions were adverse to his interests and that the conduct of the trial was oppressive to him. The appellant also argued that his sentence was manifestly excessive and that the trial judge failed to consider mitigating circumstances.

The court had to decide whether the trial judge's failure to warn the jury about the circumstances in which the witness came to give evidence constituted a misdirection or non-direction that was sufficient to warrant a new trial. The court also had to determine whether the failure to warn the jury about contradictions in the prosecution's evidence was a significant error. The court had to assess whether the use of the volume enhancing device and the trial judge's interventions in the questioning of certain witnesses were adverse to the appellant's interests and whether the conduct of the trial was oppressive to him. Finally, the court had to consider whether the sentence was manifestly excessive and whether the trial judge failed to consider mitigating circumstances.

The court found that the trial judge's failure to warn the jury about the circumstances in which the witness came to give evidence was not a significant error. The court held that the witness's evidence was not so crucial to the prosecution's case that the failure to warn the jury about the circumstances in which the witness came to give evidence was a misdirection or non-direction that warranted a new trial. The court also found that the failure to warn the jury about contradictions in the prosecution's evidence was not a significant error. The court held that the contradictions did not go to the heart of the prosecution's case and that the jury was able to assess the credibility of the prosecution's evidence. The court found that the use of the volume enhancing device and the trial judge's interventions in the questioning of certain witnesses were not adverse to the appellant's interests and that the conduct of the trial was not oppressive to him. Finally, the court found that the sentence was not manifestly excessive and that the trial judge had considered the mitigating circumstances.

The appeal against conviction was dismissed, and the application for leave to appeal against sentence was refused.

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 Orreal [2002] QCA 547
PARTIES:	R v ORREAL, Jeffrey Mark (appellant)
FILE NO/S:	CA No 296 of 2002 DC No 2017 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	19 December 2002
DELIVERED AT:	Brisbane
HEARING DATE:	6 December 2002
JUDGES:	McMurdo P, Helman and Philippides 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 – where appellant convicted of unlawful wounding after second trial – where appellant struck complainant on face with glass bottle – where witness for prosecution did not give evidence in first trial – where witness was a friend of complainant – whether failure to warn jury about circumstances in which witness came to give evidence – whether failure to warn jury about contradictions in prosecution evidence CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL – OTHER IRREGULARITIES – where volume enhancing device used when appellant gave evidence – where trial judge intervened in questioning of certain witnesses – whether interventions adverse to appellant’s interests – whether conduct of trial oppressive to appellant CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSON – where appellant sentenced to 18 months imprisonment – whether manifestly excessive – whether failure to consider mitigating circumstances
COUNSEL:	B M Orreal with leave to appear on behalf of the appellant B G Campbell for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the respondent