R v Rochester; ex parte A-G (Qld) - [2003] QCA 326

SUPREME COURT OF QUEENSLAND

CITATION:

R v Rochester; ex parte A-G (Qld) [2003] QCA 326

PARTIES:

R
v
ROCHESTER, Rodney Dean
(appellant/respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 362 of 2002
CA No 399 of 2002
SC No 501 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence
Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

1 August 2003

DELIVERED AT:

Brisbane

HEARING DATE:

21 July 2003

JUDGES:

Williams JA and Mackenzie and Helman JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. In CA No 362 of 2002
    (i) appeal against conviction dismissed
    (ii) leave to appeal against sentence refused
2. In CA No 399 of 2002
    (i) appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – where appellant convicted of attempted murder and unlawful stalking with circumstance of aggravation – where offence of attempted murder committed by way of stabbing with a knife – whether a jury could draw an inference beyond reasonable doubt that he had an actual intent to kill at the time of the stabbing

EVIDENCE – WITNESSES – REFRESHING MEMORY – GENERALLY – where witness gave evidence by telephone – where it was discovered that she had “notes” with her – where notes were made available to counsel and the issue was fully canvassed with her – whether the jury could have found her evidence to be reliable

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENDER – where appellant sentenced to 10 years imprisonment – where extensive criminal record – whether sentence imposed manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where offence involved a life-threatening injury – where offence committed in a public place – where it involved a breach of a Domestic Violence Order – whether sentence imposed manifestly inadequate

Dinsdale v The Queen (2000) 202 CLR 321, cited
Malvaso v The Queen (1989) 168 CLR 227, cited
R v Cummins [2001] QCA 237; CA No 287 of 2000, 19 June 2001, cited
R v Forster [2002] QCA 495; CA No 10 of 2002, 14 November 2002, cited
R v Hardie [1999] QCA 352; CA No 178 of 1999, 24 August 1999, cited
R v Jurcik [2001] QCA 390; CA No 87 of 2001, 21 September 2001, distinguished
R v Reeves [2001] QCA 91; CA No 276 of 2000, 13 March 2001, cited
R v Schaefer [2001] QCA 327; CA No 89 of 2001, 10 August…

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.

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Details

Case: [2003] QCA 326
Decision Date: 1 August 2003

CaseChat Overview and Summary

This case involved an appeal against conviction and sentence by the appellant, who was convicted of attempted murder and unlawful stalking with a circumstance of aggravation. The appellant was sentenced to 10 years imprisonment, and the Attorney-General of Queensland appealed the sentence as manifestly inadequate. The respondent cross-appealed the conviction, arguing it was unreasonable or insupportable. The appeal and cross-appeal were heard by the Queensland Court of Appeal.

The legal issues in this case were whether the jury could have reasonably inferred that the appellant intended to kill the victim at the time of the stabbing, whether the evidence of a witness who gave evidence by telephone was reliable, and whether the sentence imposed was manifestly excessive or inadequate. The court had to consider the evidence presented during the trial, the credibility of the witnesses, and the appropriate sentence for the offences committed.

The court found that the jury was open to drawing an inference beyond reasonable doubt that the appellant intended to kill the victim at the time of the stabbing. The court also held that the evidence of the witness who gave evidence by telephone was reliable, as the witness had notes with her which were made available to counsel and fully canvassed during the trial. Regarding the sentence, the court found that the sentence imposed was not manifestly excessive, considering the appellant's extensive criminal record. However, the court did find that the sentence was manifestly inadequate, given the severity of the offences and the need for general deterrence. The appeal against conviction was dismissed, and the leave to appeal against sentence was refused. The appeal against sentence was also dismissed.

The final orders were that the appeal against conviction was dismissed, and the leave to appeal against sentence was refused. The appeal against sentence was dismissed, and no further appeal would be allowed regarding the sentence. The appellant's conviction and sentence would stand as determined by the trial court.

Orders

Orders of the court

1. In CA No 362 of 2002

(i) appeal against conviction dismissed

(ii) leave to appeal against sentence refused

2. In CA No 399 of 2002

(i) appeal against sentence dismissed

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.

CITATION:	R v Rochester; ex parte A-G (Qld) [2003] QCA 326
PARTIES:	R v ROCHESTER, Rodney Dean (appellant/respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 362 of 2002 CA No 399 of 2002 SC No 501 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence Sentence Appeal by A-G (Qld)
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	1 August 2003
DELIVERED AT:	Brisbane
HEARING DATE:	21 July 2003
JUDGES:	Williams JA and Mackenzie and Helman JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. In CA No 362 of 2002 (i) appeal against conviction dismissed (ii) leave to appeal against sentence refused 2. In CA No 399 of 2002 (i) appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – where appellant convicted of attempted murder and unlawful stalking with circumstance of aggravation – where offence of attempted murder committed by way of stabbing with a knife – whether a jury could draw an inference beyond reasonable doubt that he had an actual intent to kill at the time of the stabbing EVIDENCE – WITNESSES – REFRESHING MEMORY – GENERALLY – where witness gave evidence by telephone – where it was discovered that she had “notes” with her – where notes were made available to counsel and the issue was fully canvassed with her – whether the jury could have found her evidence to be reliable CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENDER – where appellant sentenced to 10 years imprisonment – where extensive criminal record – whether sentence imposed manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where offence involved a life-threatening injury – where offence committed in a public place – where it involved a breach of a Domestic Violence Order – whether sentence imposed manifestly inadequate Dinsdale v The Queen (2000) 202 CLR 321, cited Malvaso v The Queen (1989) 168 CLR 227, cited R v Cummins [2001] QCA 237; CA No 287 of 2000, 19 June 2001, cited R v Forster [2002] QCA 495; CA No 10 of 2002, 14 November 2002, cited R v Hardie [1999] QCA 352; CA No 178 of 1999, 24 August 1999, cited R v Jurcik [2001] QCA 390; CA No 87 of 2001, 21 September 2001, distinguished R v Reeves [2001] QCA 91; CA No 276 of 2000, 13 March 2001, cited R v Schaefer [2001] QCA 327; CA No 89 of 2001, 10 August…