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R v Perussich

R v Perussich

Case [2001] QCA 557 7 December 2001

Criminal Liability

Breach of Contract

Compensatory Damages

Admissibility of Evidence

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SUPREME COURT OF QUEENSLAND

CITATION: R v Perussich [2001] QCA 557

PARTIES: R
v
PERUSSICH, Murray James
(Appellant)

FILE NO/S: CA No 169 of 2001
DC No 122 of 2001

DIVISION: Court of Appeal

PROCEEDING: Appeal against conviction and sentence

ORIGINATING COURT: District Court at Maroochydore

DELIVERED ON: 7 December 2001

DELIVERED AT: Brisbane

HEARING DATE: 2 October 2001

JUDGES: McPherson and Thomas JJA, Jones J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:
(1) The appeal against conviction dismissed

(2) Application for leave to appeal against sentence granted; set aside the sentence imposed on 22 June 2001 and in lieu thereof, sentence the appellant to imprisonment for a period of nine years

CATCHWORDS:
CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – grievous bodily harm with intent – where appellant and complainant proffered different accounts of relevant chain of events – where complainant shot in leg and hit on side of head with gun – where appellant and complainant both under influence of alcohol – where complainant also under influence of marijuana – where weapon not located

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS – whether judge erred in admitting evidence of appellant in cross-examination as to whether another earlier witness had lied in her evidence – whether such cross-examination was improper and contravened principles established in R v Palmer

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JURIES – SUMMING-UP – whether trial judge erred in failing to direct jury in relation to the complainant’s evidence in cross-examination that the appellant had used methylamphetamine “speed” – where counsel at trial made no request for direction – circumstances in which trial judge obligated to give directions

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JURIES – SUMMING-UP – whether trial judge erred in failing to direct jury in relation to the appellant’s intoxication – where trial counsel prior to addressing jury agreed that intoxication in relation to intent was not in issue – where question of intoxication also raised in relation to whether alternative verdict of grievous bodily harm simpliciter available to jury – where trial judge directed jury that intoxication was not in issue – whether trial judge had a duty to direct in relation to intoxication

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – MISCELLANEOUS POWERS OF COURTS AND JUDGES – whether alternative verdict of grievous bodily harm simpliciter available to jury – whether appellant intended to commit act – whether evidence supports a deliberate act - whether “all or nothing” case on evidence

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – MISCELLANEOUS POWERS OF COURTS AND JUDGES – sentencing – where appellant sentenced to nine years imprisonment with serious violent offender declaration – whether serious violent offender declaration appropriate – whether serious violent offender declaration renders sentence manifestly excessive

Criminal Code (Qld) s 28 (3)

R v Beer [2000] QCA…

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 Perussich

Details

AGLC: R v Perussich [2001] QCA 557
Case: [2001] QCA 557
Decision Date: 7 December 2001

CaseChat Overview and Summary

The case of R v Perussich was heard in the court of appeal. The appellant was convicted of grievous bodily harm with intent. Both the appellant and the complainant provided conflicting accounts of the events that led to the complainant being shot in the leg and struck on the side of the head with a gun. Both parties were under the influence of alcohol, with the complainant also under the influence of marijuana. The weapon used in the incident was never recovered.

The court was required to decide several legal issues. These included whether the judge had erred in admitting evidence during cross-examination regarding whether a previous witness had lied. The court also needed to determine if the judge should have directed the jury in relation to the complainant's evidence that the appellant had used methylamphetamine. Additionally, the court examined whether the judge should have directed the jury on the issue of the appellant's intoxication and whether the alternative verdict of grievous bodily harm simpliciter was available to the jury. Finally, the court considered whether the sentence of nine years imprisonment with a serious violent offender declaration was appropriate.

The court found that the trial judge did not err in admitting the evidence of the appellant in cross-examination regarding the truthfulness of a previous witness, nor in failing to direct the jury regarding the complainant's evidence of the appellant's drug use. The court determined that the judge was not obligated to give directions regarding intoxication as it was not an issue raised by the trial counsel, and the judge had already directed the jury that intoxication was not in issue. The court concluded that the alternative verdict of grievous bodily harm simpliciter was not available to the jury as the evidence did not support a deliberate act by the appellant. The court held that the sentence, including the serious violent offender declaration, was not manifestly excessive.

The final orders of the court were to dismiss the appeal against conviction and to grant the appellant leave to appeal against the sentence. The sentence imposed on 22 June 2001 was set aside, and in its place, the court sentenced the appellant to imprisonment for a period of nine years.

Orders

Orders of the court

(1) The appeal against conviction dismissed

(2) Application for leave to appeal against sentence granted; set aside the sentence imposed on 22 June 2001 and in lieu thereof, sentence the appellant to imprisonment for a period of nine years

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.

Citations

AGLC Citation

R v Perussich [2001] QCA 557

Most Recent Citation

R v Cupid [2004] VSCA 183

Cases citing this decision · 13 of 13 shown

John Charles (a pseudonym) v The Queen
[2022] VSCA 166 Para 3

…[36] (Callaway JA). See also R v Foley [2000] 1 Qd R 290, 296–7 (de Jersey CJ, Thomas JA and Derrington J) ( ‘Foley ’), R v Perussich [2001] QCA 557; R v Leak [1969] SASR 173, 173–4 (Bray CJ, Hogarth and Walters JJA); R v SAB (2008) 20 VR 55, 60–3 [19]–[28] (Nettle JA, Dodds-Streeton JA agreeing at 67 [52], Mandi…
R v Latemore
[2016] QCA 110 Para 28

…hat there was some premeditation in that the appellant had left the complainant’s house to go to his car where he collected the gun. [6][2001] QCA 557. [7][2001] QCA 557, [54].…
R v Barrett
[2015] QCA 81 Para 26

…victed the appellant of unlawful sodomy such that fairness required it to be left to them. [36][2001] QCA 183 at [20]. See also R v Perussich [2001] QCA 557 and R v Mead [2010] QCA 370. [37][2013] QCA 214; [2014] 1 Qd R 438. [38]At [48].…
R v Selby
[2013] QCA 261

…271 , cited R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365 , cited R v Nguyen [2006] QCA 542 , cited R v Perussich [2001] QCA 557 , cited COUNSEL: The applicant appeared on his own behalf P J McCarthy for the respondent SOLICITORS The applicant appeared on his own behalf Director of Public Prosecutions…
R v MBX
[2013] QCA 214 Para 1

…llersdorf that the alternative verdict “fairly arises for consideration on the whole of the evidence” has been adopted.[15] [15]see R v Perussich [2001] QCA 557; R v Mead [2010] QCA 370.…
R v Parker
[2011] QCA 198

…arte Attorney-General of Queensland [2002] QCA 376, considered R v Kirkby [2001] QCA 37, considered R v Perussich [2001] QCA 557 R v Schubring; ex parte A-G (Qld) [2005] 1 Qd R 515; [2004] QCA 418, considered R v Thomason; ex parte A-G (Qld) [2011] QCA 9, considered Skinner v The King (1913) 16 CLR 336 [1913] HCA…
R v Scheers
[2010] QCA 318

…e Attorney-General of Queensland [2002] QCA 376, considered R v Mitchell [2006] QCA 240, considered R v Perussich [2001] QCA 557, considered R v Wilkie [1997] QCA 337, considered R v Worland [2002] QCA 123, considered COUNSEL: J M McInnes for the applicant M B Lehane for the respondent SOLICITORS: Legal Aid Queen…
R v Honeysett; ex parte
[2010] QCA 212 Para 1

…Mr Lynch relied on a number of cases, Perussich [2001] QCA 557, Mitchell [2006] QCA 240, Beer [2000] QCA 193, Laing [2008] QCA 317, Holland [2008] QCA 200, and Granato [2006] QCA 25, for a contention that “a sentence in the range of 5-7 years is appropriate with an accompanying early recommendation for parole”. I…
R v Mitchell
[2006] QCA 240 Para 1

…Before the learned sentencing judge the prosecution submitted, primarily relying on R v Perussich [2001] QCA 557, that the applicable sentencing range was one of six to eight years imprisonment and ultimately urged the imposition of a sentence of seven years imprisonment combined with a serious violent offence de…
R v Reid
[2006] QCA 202 Para 1

…arm with intent to do same grievous bodily harm.[23] [23]As to which see R v G E Nelson CA No 324 of 1986, R v Williams [2002] QCA 142; R v Perussich [2001] QCA 557. See also R v Laus [2005] QCA 33.…
R v Cupid
[2004] VSCA 183

…[17][2000] 1 Qd R. 290 at 296-297. See also R. v. Perussich [2001] QCA 557; R. v. H [2001] QCA 563; R. v. Dunster [2002] QCA 475; Palmer v. R. at 9 [10] and R. v. Leak [1969] S.A.S.R. 172 at 173-174, referred to by McHugh, J. in Palmer v. R. at 25 [61].…
R v King & Morgan; ex parte
[2002] QCA 376

…Perussich [2001] QCA 557 was another case of grievous bodily harm with intent, where the offender again was convicted by a jury. On appeal, a sentence was substituted of nine years' imprisonment, without a serious violent offender declaration, for an attack inspired by alcohol which an offender with three prior c…
R v Williams
[2002] QCA 211

…] QCA 33; CA No 241 of 2001, 22 February 2002, followed R v Palmer (1998)193 CLR 1, followed R v Perussich [2001] QCA 557; CA No 169 of 2001, 7 December 2001, followed R v Stirling [1996] QCA 342; CA No 205 of 1996, 17 September 1996, considered R v Uhrig (unreported) CCA (NSW) 24 Oct 1996, followed COUNSEL: A W…

View all 13 citing cases →

Cases cited in this decision · 6 of 6 shown

R v Jurcik
[2001] QCA 390 Para 1

…e need for directions must depend on the impact the particular answer has on the jury’s task of fairly considering the issues at the trial. [15][2001] QCA 390 at para 15…
R v Willersdorf
[2001] QCA 183

…1996) R v Wease CA No 323 of 1992 considered R v Willersdorf [2001] QCA 183; CA 333 of 2000, 15 May 2001 considered Van den Hoek v The Queen (1986) 161 CLR 158 considered COUNSEL: A J Glynn SC with him AJ Rafter for the appellant S G Bain for the respondent SOLICITORS: Dearden Lawyers for the appellant Director…
Tanks v WorkCover Queensland
[2001] QCA 103

…[27][2001] QCA 103 at para 20…
R v Beer
[2000] QCA 193 Para 1

…y of the Court set aside the sentence and imposed instead a sentence of seven years imprisonment without a declaration. [28]CA No 323 of 1992 [29][2000] QCA 193…
Palmer v the Queen
[1998] HCA 2 Para 1

…amination was improper and contravened the principle that questioning of this kind diminishes the onus of proof as was set out in Palmer v R [5] . [5](1998) 193 CLR 1…
Van den Hoek v The Queen
[1986] HCA 76

…rsdorf [2001] QCA 183; CA 333 of 2000, 15 May 2001 considered Van den Hoek v The Queen (1986) 161 CLR 158 considered COUNSEL: A J Glynn SC with him AJ Rafter for the appellant S G Bain for the respondent SOLICITORS: Dearden Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent…

Legislation cited in this decision · 0

No legislation cited in this case.

CITATION:	R v Perussich [2001] QCA 557
PARTIES:	R v PERUSSICH, Murray James (Appellant)
FILE NO/S:	CA No 169 of 2001 DC No 122 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against conviction and sentence
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	7 December 2001
DELIVERED AT:	Brisbane
HEARING DATE:	2 October 2001
JUDGES:	McPherson and Thomas JJA, Jones J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	(1) The appeal against conviction dismissed (2) Application for leave to appeal against sentence granted; set aside the sentence imposed on 22 June 2001 and in lieu thereof, sentence the appellant to imprisonment for a period of nine years
CATCHWORDS:	CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – grievous bodily harm with intent – where appellant and complainant proffered different accounts of relevant chain of events – where complainant shot in leg and hit on side of head with gun – where appellant and complainant both under influence of alcohol – where complainant also under influence of marijuana – where weapon not located CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS – whether judge erred in admitting evidence of appellant in cross-examination as to whether another earlier witness had lied in her evidence – whether such cross-examination was improper and contravened principles established in R v Palmer CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JURIES – SUMMING-UP – whether trial judge erred in failing to direct jury in relation to the complainant’s evidence in cross-examination that the appellant had used methylamphetamine “speed” – where counsel at trial made no request for direction – circumstances in which trial judge obligated to give directions CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JURIES – SUMMING-UP – whether trial judge erred in failing to direct jury in relation to the appellant’s intoxication – where trial counsel prior to addressing jury agreed that intoxication in relation to intent was not in issue – where question of intoxication also raised in relation to whether alternative verdict of grievous bodily harm simpliciter available to jury – where trial judge directed jury that intoxication was not in issue – whether trial judge had a duty to direct in relation to intoxication CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – MISCELLANEOUS POWERS OF COURTS AND JUDGES – whether alternative verdict of grievous bodily harm simpliciter available to jury – whether appellant intended to commit act – whether evidence supports a deliberate act - whether “all or nothing” case on evidence CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – MISCELLANEOUS POWERS OF COURTS AND JUDGES – sentencing – where appellant sentenced to nine years imprisonment with serious violent offender declaration – whether serious violent offender declaration appropriate – whether serious violent offender declaration renders sentence manifestly excessive Criminal Code (Qld) s 28 (3)
R v Beer [2000] QCA…