R v Sheldon - [2014] QCA 328

SUPREME COURT OF QUEENSLAND

CITATION:

R v Sheldon [2014] QCA 328

PARTIES:

R
v
SHELDON, Kyle John
(appellant/applicant)

FILE NO/S:

CA No 129 of 2013
DC No 96 of 2012
DC No 398 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

12 December 2014

DELIVERED AT:

Brisbane

HEARING DATE:

25 August 2014

JUDGES:

Holmes and Morrison JJA and Alan Wilson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Allow the appeal against conviction.

2.   Set aside the conviction and order a re-trial.

3.   Grant the application for leave to appeal against sentence.

4.   Allow the appeal and impose a sentence of seven years imprisonment, with a parole eligibility date fixed at 2 May 2016.

5.   Declare that the appellant has served between 2 May 2013 and 12 December 2014 as imprisonment under that sentence, a period of 590 days.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – where the appellant was convicted by a jury of one count of dangerous operation of a vehicle causing the death of two passengers, with the aggravating circumstance that although he ought reasonably to have known that both had been killed, he left the scene of the incident – where the appellant appeals the conviction – where the appellant seeks to adduce as fresh evidence a report from a road safety and traffic engineering consultant – where the appellant contends the report raises reasonable hypotheses consistent with innocence – where there is little or no evidentiary basis for the report’s assertions – where the report is new, but not fresh, evidence, since the appellant could have procured it for the trial - whether the absence of the evidence from the trial produced a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS AND POINTS NOT RAISED IN THE COURT BELOW – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – where the appellant was convicted by a jury of dangerous operation of a vehicle causing the death of two passengers, and leaving the scene when he ought reasonably to have known his passengers had been killed – where the appellant’s vehicle collided with a truck parked in the parking lane – where the appellant asserted that he was distracted by a safe falling onto him – where the appellant argues that both limbs of accident under s 23(1) and mistake of fact under s 24(1) of the Criminal Code 1899 (Qld) should have been left for the jury’s consideration – where there was no evidence which raised any of those excuses – whether the trial judge erred in failing to leave those excuses to the jury

CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS AND POINTS NOT RAISED IN THE COURT BELOW – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – where the appellant was convicted by…

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 Sheldon

Details

AGLC: R v Sheldon [2014] QCA 328
Case: [2014] QCA 328
Decision Date: 12 December 2014

CaseChat Overview and Summary

In the case of R v Sheldon, the appellant was convicted by a jury of dangerous operation of a vehicle causing the death of two passengers and leaving the scene when he ought reasonably to have known that both had been killed. The appellant sought to appeal his conviction and sentence, arguing various grounds including alleged miscarriage of justice and manifest excessivity of sentence. The court was required to determine whether the evidence presented at the trial was sufficient to support the conviction, whether there were any misdirections or non-directions by the trial judge, and whether the sentence imposed was manifestly excessive.

The court found that the appellant's arguments regarding the introduction of new evidence were unavailing, as the evidence in question was not truly new but rather could have been procured for the trial. Additionally, the court found that the trial judge had not erred in failing to leave certain defences to the jury, as there was no evidence to support those defences. The court also found that the trial judge had not misdirected the jury in relation to the evidence of the appellant's prior criminal activities, and that there was no need for a propensity direction in respect of the appellant's use of the vehicle.

The court found that the appellant's appeal against sentence was successful in respect of the 2011 conviction, and that the sentence for the 2009 offence should be remitted and re-sentenced. The court found that the sentence for the 2009 offence, when viewed alone, was not manifestly excessive. The court allowed the appeal against conviction, set aside the conviction and ordered a re-trial. The court also granted the appellant leave to appeal against sentence, allowed the appeal, and imposed a sentence of seven years imprisonment, with a parole eligibility date fixed at 2 May 2016. The court declared that the appellant had served between 2 May 2013 and 12 December 2014 as imprisonment under that sentence, a period of 590 days.

Orders

Orders of the court

1. Allow the appeal against conviction.

2. Set aside the conviction and order a re-trial.

3. Grant the application for leave to appeal against sentence.

4. Allow the appeal and impose a sentence of seven years imprisonment, with a parole eligibility date fixed at 2 May 2016.

5. Declare that the appellant has served between 2 May 2013 and 12 December 2014 as imprisonment under that sentence, a period of 590 days.

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 Sheldon [2014] QCA 328
PARTIES:	R v SHELDON, Kyle John (appellant/applicant)
FILE NO/S:	CA No 129 of 2013 DC No 96 of 2012 DC No 398 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	12 December 2014
DELIVERED AT:	Brisbane
HEARING DATE:	25 August 2014
JUDGES:	Holmes and Morrison JJA and Alan Wilson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Allow the appeal against conviction. 2. Set aside the conviction and order a re-trial. 3. Grant the application for leave to appeal against sentence. 4. Allow the appeal and impose a sentence of seven years imprisonment, with a parole eligibility date fixed at 2 May 2016. 5. Declare that the appellant has served between 2 May 2013 and 12 December 2014 as imprisonment under that sentence, a period of 590 days.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – where the appellant was convicted by a jury of one count of dangerous operation of a vehicle causing the death of two passengers, with the aggravating circumstance that although he ought reasonably to have known that both had been killed, he left the scene of the incident – where the appellant appeals the conviction – where the appellant seeks to adduce as fresh evidence a report from a road safety and traffic engineering consultant – where the appellant contends the report raises reasonable hypotheses consistent with innocence – where there is little or no evidentiary basis for the report’s assertions – where the report is new, but not fresh, evidence, since the appellant could have procured it for the trial - whether the absence of the evidence from the trial produced a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS AND POINTS NOT RAISED IN THE COURT BELOW – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – where the appellant was convicted by a jury of dangerous operation of a vehicle causing the death of two passengers, and leaving the scene when he ought reasonably to have known his passengers had been killed – where the appellant’s vehicle collided with a truck parked in the parking lane – where the appellant asserted that he was distracted by a safe falling onto him – where the appellant argues that both limbs of accident under s 23(1) and mistake of fact under s 24(1) of the Criminal Code 1899 (Qld) should have been left for the jury’s consideration – where there was no evidence which raised any of those excuses – whether the trial judge erred in failing to leave those excuses to the jury CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS AND POINTS NOT RAISED IN THE COURT BELOW – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – where the appellant was convicted by…