SUPREME COURT OF QUEENSLAND
CITATION:
R v Purcell [2010] QCA 285
PARTIES:
R
v
PURCELL, Howard William
(applicant/appellant)FILE NO/S:
CA No 85 of 2010
CA No 121 of 2010
DC No 2810 of 2008DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction & Sentence
ORIGINATING COURT:
District Court at BrisbaneDELIVERED ON:
22 October 2010
DELIVERED AT:
Brisbane
HEARING DATE:
5 October 2010
JUDGES:
McMurdo P, Cullinane and Jones JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDERS: (a) Appeal against conviction dismissed.
(b) Application for leave to appeal against sentence granted.
(c) Allow the appeal against sentence in respect of count 2, set aside the sentence of 12 years imprisonment imposed on count 2 and substitute a sentence of 10 years imprisonment on count 2.
(d) The sentence imposed at first instance is otherwise confirmed.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – GENERAL PRINCIPLES – appellant convicted of rape and assault occasioning bodily harm – appellant gave interview to police after being asked about an 'assault' – appellant later gave different version of events – trial judge refused to exclude record of interview – whether interview was relevant – whether contained statements adverse to interest – whether evidence in record of interview was involuntary – whether trial judge erred in refusing to exclude record of interview
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – trial judge gave general direction regarding lies – judge have no specific direction about the use to be made of appellant's omission of evidence at police interview – whether judge ought to have given a specific warning or direction to jury
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF TRIAL JUDGE – complainant gave evidence regarding alcoholism – doctor gave consistent hearsay evidence about alcoholism – counsel for appellant asked complainant to be recalled and cross-examined – trial judge refused application – whether judge erred in refusing application to have complainant cross-examined
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – body of DNA evidence linking the appellant with the offences – some discrepancy between complainant's physical description of appellant and actual appearance – whether open to the jury to be satisfied of guilt beyond reasonable doubt - whether the verdict was unreasonable having regard to the whole of the evidence
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – appellant sentenced to a total of 12 years imprisonment with a declaration that the appellant has been convicted of a serious violent offence – appellant had substantial criminal history including offences of violence – appellant served previous terms…
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- AGLC
- R v Purcell [2010] QCA 285
- Case
- [2010] QCA 285
- Decision Date
CaseChat Overview and Summary
The primary legal issues revolved around the admissibility of the police interview, which contained statements adverse to the appellant's interest. The court examined whether the interview was relevant and whether the statements were involuntary. Additionally, the court assessed whether the trial judge should have provided a specific direction to the jury about the use of the appellant's omission of evidence during the police interview. Furthermore, the court considered whether the trial judge erred in refusing to cross-examine the complainant about her alcoholism. Finally, the court reviewed the overall evidence to determine if the jury's verdict was reasonable.
The court found that while the trial judge's admission of the police interview was correct, the general direction to the jury regarding lies did not specifically address the appellant's omission of evidence. However, this omission did not lead to a miscarriage of justice. The court also concluded that the refusal to cross-examine the complainant about her alcoholism was not an error, as it did not prejudice the appellant. The body of DNA evidence and other corroborating factors led the court to conclude that the jury's verdict was reasonable. Regarding the sentence, the court found that while the sentence was severe, it was not manifestly excessive given the appellant's substantial criminal history and the seriousness of the offences.
The court dismissed the appeal against conviction but granted leave to appeal against the sentence. It allowed the appeal in respect of the second count, reducing the sentence from 12 years to 10 years imprisonment. The rest of the sentence remained unchanged.
Orders
Orders of the court
(a) Appeal against conviction dismissed.
(b) Application for leave to appeal against sentence granted.
(c) Allow the appeal against sentence in respect of count 2, set aside the sentence of 12 years imprisonment imposed on count 2 and substitute a sentence of 10 years imprisonment on count 2.
(d) The sentence imposed at first instance is otherwise confirmed.
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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