R v Peachey - [2006] QCA 162

SUPREME COURT OF QUEENSLAND

CITATION:

R v Peachey [2006] QCA 162

PARTIES:

R
v
PEACHEY, Ian Alexander
(appellant)

FILE NO/S:

CA No 35 of 2006
DC No 477 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

19 May 2006

DELIVERED AT:

Brisbane

HEARING DATE:

19 April 2006

JUDGES:

Jerrard JA, Chesterman and Mullins JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeal granted
2. Set aside conviction and order retrial

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where appellant convicted of unlawfully causing grievous bodily harm – where appellant was sentenced to two years imprisonment, suspended after 12 months for an operational period of three years – where appellant appealed against conviction – whether trial judge misdirected the jury

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – PARTICULAR MATTERS – CONTROL OF PROCEEDINGS – ADJOURNMENT – where appellant was dissatisfied with the trial preparation by his counsel – where appellant applied for adjournment of trial – where trial was adjourned for only half a day – whether trial judge erred in not adjourning the trial on the first day of the trial

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – WHERE GROUNDS FOR INTERFERENCE WITH VERDICT – GENERALLY – where trial judge directed jury on self-defence under s 271(2) Criminal Code 1899 (Qld) – where counsel did not ask trial judge to direct jury on self-defence under s 271(1) Criminal Code 1899 (Qld) – where counsel was satisfied with s 271(2) direction – whether s 271(1) self-defence direction should have been given – whether it was reasonably possible that the absence of a s 271(1) direction affected the verdict – whether s 668E(1E) Criminal Code 1899 (Qld) proviso should be applied

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 WAS NOT SUBSTANTIAL – MISDIRECTION AND NON-DIRECTION – GENERALLY – where trial judge directed jury to consider whether they were satisfied beyond reasonable doubt that an ordinary person in the appellant’s position would have foreseen grievous bodily harm resulting from a fractured cheek bone as a possible outcome of kicking at the complainant – whether trial judge should have directed the jury to exclude possibilities that were not more than remote and speculative – where trial judge only referred to medical evidence when directing jurors on whether grievous bodily harm had actually been proved – whether trial judge should have referred jury to medical evidence when directing jury on whether an ordinary person would have foreseen grievous bodily…

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 Peachey

Details

AGLC: R v Peachey [2006] QCA 162
Case: [2006] QCA 162
Decision Date: 19 May 2006

CaseChat Overview and Summary

In the case of R v Peachey, the appellant was convicted of unlawfully causing grievous bodily harm to the complainant. The appellant was sentenced to two years imprisonment, which was suspended after 12 months for an operational period of three years. The appellant appealed against his conviction, arguing that the trial judge had misdirected the jury, and that there had been a miscarriage of justice. The legal issues before the court included whether the trial judge had properly directed the jury on the principles of self-defence, and whether the trial judge had erred in directing the jury on the evidence relevant to whether the complainant’s injuries amounted to grievous bodily harm.

The court considered whether the trial judge had misdirected the jury on the principles of self-defence, and whether it was reasonably possible that the absence of a certain direction affected the verdict. The court found that the trial judge had directed the jury on self-defence under s 271(2) of the Criminal Code, but had not directed the jury on self-defence under s 271(1). The court found that the absence of a s 271(1) direction was not reasonably possible to have affected the verdict, and therefore the proviso in s 668E(1E) of the Criminal Code did not apply. The court also found that the trial judge had properly directed the jury on the evidence relevant to whether the complainant’s injuries amounted to grievous bodily harm.

The court further considered whether the trial judge should have directed the jury to exclude possibilities that were not more than remote and speculative, and whether the trial judge should have referred the jury to medical evidence when directing them on whether an ordinary person would have foreseen grievous bodily harm resulting from a cheek bone fracture as a possible consequence. The court found that the trial judge had not erred in these respects. The court also considered whether the trial judge should have left the first limb of accident under s 23(1)(a) of the Criminal Code to the jury. The court found that the trial judge had not erred in this respect either.

Finally, the court considered whether the trial judge had erred in not adjourning the trial on the first day of the trial. The court found that the trial judge had not erred in this respect, and that the appellant’s dissatisfaction with his trial preparation by his counsel did not amount to a miscarriage of justice.

The court found that there had been no miscarriage of justice, and dismissed the appeal. However, the court granted the appeal and set aside the conviction, ordering a retrial. The court found that the trial judge had misdirected the jury on the principles of self-defence, and that it was reasonably possible that the absence of a s 271(1) direction affected the verdict. The court found that the proviso in s 668E(1E) of the Criminal Code applied, and that the appellant was entitled to a retrial.

Orders

Orders of the court

1. Appeal granted

2. Set aside conviction and order retrial

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 Peachey [2006] QCA 162
PARTIES:	R v PEACHEY, Ian Alexander (appellant)
FILE NO/S:	CA No 35 of 2006 DC No 477 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	19 May 2006
DELIVERED AT:	Brisbane
HEARING DATE:	19 April 2006
JUDGES:	Jerrard JA, Chesterman and Mullins JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal granted 2. Set aside conviction and order retrial
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where appellant convicted of unlawfully causing grievous bodily harm – where appellant was sentenced to two years imprisonment, suspended after 12 months for an operational period of three years – where appellant appealed against conviction – whether trial judge misdirected the jury CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – PARTICULAR MATTERS – CONTROL OF PROCEEDINGS – ADJOURNMENT – where appellant was dissatisfied with the trial preparation by his counsel – where appellant applied for adjournment of trial – where trial was adjourned for only half a day – whether trial judge erred in not adjourning the trial on the first day of the trial CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – WHERE GROUNDS FOR INTERFERENCE WITH VERDICT – GENERALLY – where trial judge directed jury on self-defence under s 271(2) Criminal Code 1899 (Qld) – where counsel did not ask trial judge to direct jury on self-defence under s 271(1) Criminal Code 1899 (Qld) – where counsel was satisfied with s 271(2) direction – whether s 271(1) self-defence direction should have been given – whether it was reasonably possible that the absence of a s 271(1) direction affected the verdict – whether s 668E(1E) Criminal Code 1899 (Qld) proviso should be applied 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 WAS NOT SUBSTANTIAL – MISDIRECTION AND NON-DIRECTION – GENERALLY – where trial judge directed jury to consider whether they were satisfied beyond reasonable doubt that an ordinary person in the appellant’s position would have foreseen grievous bodily harm resulting from a fractured cheek bone as a possible outcome of kicking at the complainant – whether trial judge should have directed the jury to exclude possibilities that were not more than remote and speculative – where trial judge only referred to medical evidence when directing jurors on whether grievous bodily harm had actually been proved – whether trial judge should have referred jury to medical evidence when directing jury on whether an ordinary person would have foreseen grievous bodily…