| IN THE COURT OF APPEAL | [1998] QCA 157 |
| SUPREME COURT OF QUEENSLAND |
C.A. No. 28 of 1998
Brisbane
[ R v Rehavi ]
THE QUEEN
v
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…
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- AGLC
- R v Rehavi [1998] QCA 157
- Case
- [1998] QCA 157
- Decision Date
CaseChat Overview and Summary
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.
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