R v Pao - [2012] QCA 8

SUPREME COURT OF QUEENSLAND

CITATION:

R v PAO [2012] QCA 8

PARTIES:

R
v
PAO
(appellant)

FILE NO/S:

CA No 80 of 2011
SC No 17 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Mt Isa

DELIVERED ON:

10 February 2012

DELIVERED AT:

Brisbane

HEARING DATE:

28 November 2011

JUDGES:

Margaret McMurdo P, Chesterman JA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal against conviction dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION –CONSIDERATION OF SUMMING UP AS A WHOLE – where the appellant was convicted after trial of murdering her baby daughter – where the appellant argued the trial judge did not sufficiently assist the jury as to the real issues raised on the evidence so that the jury was unable to discharge its duty – where the appellant further argued the judge's directions confused the element of intent in the murder charge and the defence of accident denying the appellant the opportunity to have the jury consider accident in relation to manslaughter – whether the trial judge's directions sufficiently dealt with the real issues in the trial

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where there was evidence in the trial of the appellant acting in strange and socially unacceptable ways; self-harming whilst pregnant with the deceased; and unlawful drug use – where the appellant contended the trial judge erred in not giving warnings to the jury about general propensity and evidence of bad character – whether the trial judge erred by failing to direct in such terms – whether there was a miscarriage of justice

Criminal Code 1899 (Qld), s 23, s 304A

BRS v The Queen (1997) 191 CLR 275; [1997] HCA 47, cited
Hargraves and Stoten v The Queen (2011) 85 ALJR 1254; [2011] HCA 44, applied
R v Mogg (2000) 112 A Crim R 417; [2000] QCA 244, distinguished
R v Self [2001] QCA 338, cited
Roach v The Queen (2011) 242 CLR 610; [2011] HCA 12, cited

COUNSEL:

A W Collins for the appellant (pro bono)
R G Martin SC for the respondent

SOLICITORS:

No appearance for the appellant
Director of Public Prosecutions (Queensland) for the respondent

MARGARET McMURDO P: The appellant pleaded not guilty on 21 March 2011 in the Supreme Court at Mt Isa to murdering her baby daughter at Mt Isa on 7 April 2007. She was convicted after a four day trial. She has appealed against her conviction on two grounds. The first is that the judge erred in not sufficiently assisting the jury as to the real issues raised on the evidence so that the jury was unable to discharge its duty, particularly concerning the directions on intent and accident (s 23 Criminal…

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 Pao

Details

AGLC: R v Pao [2012] QCA 8
Case: [2012] QCA 8
Decision Date: 10 February 2012

CaseChat Overview and Summary

In the case of R v Pao, the appellant was convicted of murdering her baby daughter following a trial. The appellant appealed the conviction, arguing that the trial judge's directions to the jury were inadequate, leading to a miscarriage of justice. Specifically, the appellant contended that the judge did not sufficiently assist the jury in understanding the real issues in the case, particularly regarding the intent element of the murder charge and the defence of accident as it related to manslaughter. Furthermore, the appellant claimed that the trial judge failed to provide appropriate warnings to the jury about evidence of her strange and socially unacceptable behaviour, self-harming during her pregnancy, and unlawful drug use.

The legal issues before the court were whether the trial judge's directions to the jury were erroneous and whether these errors led to a miscarriage of justice. The court had to consider whether the summing up as a whole adequately addressed the real issues in the trial and if the alleged misdirections or non-directions affected the fairness of the trial. Additionally, the court assessed whether the trial judge should have provided warnings to the jury about the appellant's general propensity and evidence of bad character.

Upon reviewing the trial judge's directions and the evidence presented, the court determined that the summing up was sufficient to guide the jury in reaching their verdict. The court concluded that the judge's directions adequately covered the real issues in the trial and that the appellant's claims of misdirection and non-direction did not amount to a miscarriage of justice. The court also found that no additional warnings were necessary concerning the appellant's general propensity and evidence of bad character. Consequently, the appeal against the conviction was dismissed.

The final orders of the court were to dismiss the appeal against the conviction. The appellant's conviction for the murder of her baby daughter was upheld.

Orders

Orders of the court

Appeal against conviction 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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v PAO [2012] QCA 8
PARTIES:	R v PAO (appellant)
FILE NO/S:	CA No 80 of 2011 SC No 17 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Mt Isa
DELIVERED ON:	10 February 2012
DELIVERED AT:	Brisbane
HEARING DATE:	28 November 2011
JUDGES:	Margaret McMurdo P, Chesterman JA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal against conviction dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION –CONSIDERATION OF SUMMING UP AS A WHOLE – where the appellant was convicted after trial of murdering her baby daughter – where the appellant argued the trial judge did not sufficiently assist the jury as to the real issues raised on the evidence so that the jury was unable to discharge its duty – where the appellant further argued the judge's directions confused the element of intent in the murder charge and the defence of accident denying the appellant the opportunity to have the jury consider accident in relation to manslaughter – whether the trial judge's directions sufficiently dealt with the real issues in the trial CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where there was evidence in the trial of the appellant acting in strange and socially unacceptable ways; self-harming whilst pregnant with the deceased; and unlawful drug use – where the appellant contended the trial judge erred in not giving warnings to the jury about general propensity and evidence of bad character – whether the trial judge erred by failing to direct in such terms – whether there was a miscarriage of justice Criminal Code 1899 (Qld), s 23, s 304A BRS v The Queen (1997) 191 CLR 275; [1997] HCA 47, cited Hargraves and Stoten v The Queen (2011) 85 ALJR 1254; [2011] HCA 44, applied R v Mogg (2000) 112 A Crim R 417; [2000] QCA 244, distinguished R v Self [2001] QCA 338, cited Roach v The Queen (2011) 242 CLR 610; [2011] HCA 12, cited
COUNSEL:	A W Collins for the appellant (pro bono) R G Martin SC for the respondent
SOLICITORS:	No appearance for the appellant Director of Public Prosecutions (Queensland) for the respondent