R v. Saebar - [2008] QCA 407

SUPREME COURT OF QUEENSLAND

CITATION:

R v Saebar [2008] QCA 407

PARTIES:

R
v
SAEBAR, Jason Robert
(applicant/appellant)

FILE NO/S:

CA No 200 of 2008
CA No 261 of 2008
DC No 1897 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application
Application for Extension (Conviction)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

16 December 2008

DELIVERED AT:

Brisbane

HEARING DATE:

27 November 2008

JUDGES:

Muir JA, White AJA and McMurdo J
Separate reasons for judgment of each member of the Court, White AJA and McMurdo J concurring as to the orders made, Muir JA dissenting

ORDERS:

1. Appeal allowed

2. Conviction on count 4 quashed

3. Acquittal on count 4 entered

4. The appellant be released on parole today

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of attempting to strike the complainant with a motor vehicle with intent to resist lawful arrest (count four) – where the appellant pleaded guilty to three other counts of unlawful use of a motor vehicle without the consent of the person in lawful possession of it (count one), assault of the complainant whilst in the execution of his duty (count two) and dangerously operating a vehicle whilst adversely affected by an intoxicating substance (count three) – where, in relation to count four, the primary judge gave directions on intoxication relating to an offence involving a specific intent and an offence involving no specific intent – whether the primary judge gave inconsistent directions which may have confused the jury and caused a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the primary judge directed the jury that they could not infer by reasons of the appellant’s guilty pleas to three other counts that the appellant was guilty of count four – where the primary judge gave a direction that the jury must only take into account evidence that had been adduced in respect of count four – whether there was a miscarriage of justice due to the failure to adequately direct the jury as to what use they could make of the events the subject of count three and the relevant standard of proof when deciding the circumstantial case advanced in respect of count four

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where, in relation to count four, the appellant was charged with intent to evade lawful arrest by attempting to strike the complainant with a motor vehicle – where the appellant drove towards the complainant – whether the only rational inference from the facts which was open to the jury was that the appellant intended to strike the complainant – whether the verdict is unsafe and unsatisfactory as it was not open to the jury on the evidence…

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. Saebar

Details

AGLC: R v Saebar [2008] QCA 407
Case: [2008] QCA 407
Decision Date: 16 December 2008

CaseChat Overview and Summary

The case of R v. Saebar involves an appeal against conviction and sentence by the appellant who was convicted of attempting to strike a police officer with a motor vehicle with intent to resist lawful arrest (count four). The appellant had also pleaded guilty to other charges, including unlawful use of a motor vehicle, assault on a police officer, and dangerous operation of a vehicle while under the influence of an intoxicating substance. The court was required to determine whether the trial judge's directions to the jury on intoxication and the use of the appellant's guilty pleas constituted a misdirection or non-direction that led to a miscarriage of justice. Additionally, the court considered whether the verdict was unreasonable or unsatisfactory having regard to the evidence, and whether the sentence imposed was manifestly excessive.

The court examined the trial judge's directions on intoxication, noting that the judge provided instructions on both offences involving specific intent and those that did not. The court found that the directions were potentially inconsistent, which may have confused the jury. Furthermore, the court held that the trial judge's direction that the jury could not infer guilt on count four based on the appellant's guilty pleas to the other counts was not adequate. The court concluded that the failure to properly direct the jury as to what use they could make of the events related to count three and the standard of proof for the circumstantial case in count four may have resulted in a miscarriage of justice.

Based on the evidence presented, the court found that the only rational inference was that the appellant intended to strike the police officer. However, given the misdirections and non-directions, the court determined that the verdict was unsafe and unsatisfactory as it was not open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt in light of a rational hypothesis consistent with innocence. Consequently, the appeal was allowed, the conviction on count four was quashed, an acquittal on count four was entered, and the appellant was ordered to be released on parole.

Orders

Orders of the court

1. Appeal allowed

2. Conviction on count 4 quashed

3. Acquittal on count 4 entered

4. The appellant be released on parole today

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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CITATION:	R v Saebar [2008] QCA 407
PARTIES:	R v SAEBAR, Jason Robert (applicant/appellant)
FILE NO/S:	CA No 200 of 2008 CA No 261 of 2008 DC No 1897 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application Application for Extension (Conviction)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	16 December 2008
DELIVERED AT:	Brisbane
HEARING DATE:	27 November 2008
JUDGES:	Muir JA, White AJA and McMurdo J Separate reasons for judgment of each member of the Court, White AJA and McMurdo J concurring as to the orders made, Muir JA dissenting
ORDERS:	1. Appeal allowed 2. Conviction on count 4 quashed 3. Acquittal on count 4 entered 4. The appellant be released on parole today
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of attempting to strike the complainant with a motor vehicle with intent to resist lawful arrest (count four) – where the appellant pleaded guilty to three other counts of unlawful use of a motor vehicle without the consent of the person in lawful possession of it (count one), assault of the complainant whilst in the execution of his duty (count two) and dangerously operating a vehicle whilst adversely affected by an intoxicating substance (count three) – where, in relation to count four, the primary judge gave directions on intoxication relating to an offence involving a specific intent and an offence involving no specific intent – whether the primary judge gave inconsistent directions which may have confused the jury and caused a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the primary judge directed the jury that they could not infer by reasons of the appellant’s guilty pleas to three other counts that the appellant was guilty of count four – where the primary judge gave a direction that the jury must only take into account evidence that had been adduced in respect of count four – whether there was a miscarriage of justice due to the failure to adequately direct the jury as to what use they could make of the events the subject of count three and the relevant standard of proof when deciding the circumstantial case advanced in respect of count four CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where, in relation to count four, the appellant was charged with intent to evade lawful arrest by attempting to strike the complainant with a motor vehicle – where the appellant drove towards the complainant – whether the only rational inference from the facts which was open to the jury was that the appellant intended to strike the complainant – whether the verdict is unsafe and unsatisfactory as it was not open to the jury on the evidence…