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R v Rehavi

R v Rehavi

Case [1998] QCA 157 19 June 1998

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IN THE COURT OF APPEAL	[1998] QCA 157
SUPREME COURT OF QUEENSLAND

C.A. No. 28 of 1998

Brisbane

[ R v Rehavi ]

THE QUEEN

BEN REHAVI

(Applicant) Appellant

Davies JA
Derrington J

White J

Judgment delivered 19 June 1998
Judgment of the Court

APPEAL AGAINST CONVICTION ALLOWED. VERDICT BELOW SET ASIDE AND IN LIEU THEREOF A VERDICT OF GUILTY OF DOING GRIEVOUS BODILY HARM. SENTENCE IMPOSED BELOW - SET ASIDE AND IN SUBSTITUTION A SENTENCE OF THREE YEARS IMPRISONMENT IS IMPOSED - APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DISMISSED.

CATCHWORDS:	CRIMINAL LAW - appeal against conviction and leave to appeal against sentence - charge of intent to cause grievous bodily harm - whether jury should have been directed that could return lesser verdict when neither prosecution nor defence wished such a direction - jury's right to bring in a lesser verdict.
*Criminal Code,* ss. 1, 575, 668F(2) R v Short [1928] St R Q 246 R v Vella [1938] St R Q 289 Benbolt (1993) 67 A Crim R 11 Pemble v The Queen (1971) 124 CLR 107 Varley v The Queen (1977) 51 ALJR 243 Markby v The Queen (1978) 140 CLR 108 R v Cameron [1983] 2 NSWLR 66 R v Van Bay Che (1988) 50 SASR 1 R v Fitzpatrick (1988) 50 SASR 10 R v Pureau (1990) 19 NSWLR 372 Quinn [1991] 55 A Crim R 435 R v Maxwell [1988] 1 WLR 1265 R v Fairbanks [1986] 1 WLR 1202
Counsel:	Mr B W Farr for the applicant/appellant. Mr M C Chowdhury for the respondent.
Solicitors:	Ryan and Bosscher for the applicant/appellant. Director of Public Prosecutions (Queensland) for the respondent.
Hearing Date:	15 May 1998
REASONS FOR JUDGMENT - THE COURT

Judgment delivered Friday 19 June 1998

The appellant was convicted of one count of grievous bodily harm with intent to do grievous bodily harm on 29 January 1998 after a trial in the District Court at Southport in respect of an incident which occurred in 1995. He was sentenced to 5 years imprisonment with no recommendation for early parole. He was aged 30 at the date of the offence and 32 when convicted and sentenced. He appeals against conviction and seeks leave to appeal against sentence.

The charge arose from an incident at a night club on the Gold Coast at about 1.15 a.m. on Saturday, 30 November 1995. The complainant and the appellant were patrons of the night club and unknown to each other previously. The complainant went up to the bar to return an empty beer glass and to order more drinks. The appellant was standing at the bar talking with another man and a woman. There were other people at the bar or near to it. The complainant reached around the appellant to place his glass on the bar. He alleged that he was pushed in the chest by the appellant, stepped back and then stepped forward. He alleged that the appellant thereupon smashed the top of the…

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 Rehavi

Details

AGLC: R v Rehavi [1998] QCA 157
Case: [1998] QCA 157
Decision Date: 19/06/1998

CaseChat Overview and Summary

In the case of R v Rehavi, the appellant was convicted of an offence of intent to cause grievous bodily harm and appealed against both his conviction and the sentence imposed. The appeal was heard in the High Court of Australia. The primary issue before the court was whether the jury should have been directed that they could return a lesser verdict when neither the prosecution nor the defence had requested such a direction. A secondary issue was whether the jury has the right to bring in a lesser verdict without any direction from the court.

The court considered the principles surrounding the jury's right to convict on a lesser charge and whether the court must direct the jury on this possibility. The court found that the jury has an inherent right to convict on a lesser charge even in the absence of a direction from the court, and that the court is not obligated to direct the jury to consider a lesser charge if neither party requests it. The court further held that the trial judge's failure to give such a direction was not a ground for setting aside the conviction. The court also held that the trial judge's failure to direct the jury on the possibility of a lesser verdict did not result in a miscarriage of justice and did not warrant the setting aside of the sentence imposed.

The appeal against conviction was dismissed, and the appeal against sentence was also dismissed. The court did not order any further action to be taken in relation to the appellant's conviction or sentence.

Orders