R v Silvester - [1998] QCA 194

COURT OF APPEAL

[1998] QCA 194

McPHERSON JA
AMBROSE J

LEE J

CA No 101 of 1998
THE QUEEN
v.
DESMOND PATRICK SILVESTER

(Applicant) Appellant

BRISBANE
..DATE 05/06/98
050698 T13/AW/16 M/T COA 129/98
McPHERSON JA: The appellant, Desmond Silvester, was
convicted after a trial in the District Court of the offence
of doing grievous bodily harm to the complainant Adele
Johnston on 14 May 1996. The injury she sustained was a jaw
broken in two places on either side of the chin. She
underwent a surgical operation to fix the jawbone but that was
only some days later. At the date of the trial in 1998 she
continued to suffer paraesthesia to her lower face and lip and
that condition, on the evidence, is going to be permanent.

The prosecution case was that the injury she sustained on the date mentioned was caused by two punches inflicted by the appellant. She is, it appears, about 58 years of age and the consequences are, from what one can see of the medical evidence, that she will bear this disability for the rest of her life.

At the time in question the appellant lived with a woman who was then his de facto wife. Her name is Jill Vea and they lived in a unit in a block of units, another of which was occupied by the complainant, and yet another by a further witness in this case.

On the evening of May 14, 1996 the appellant and his wife
invited the complainant to share their dinner with them in
their unit. Mrs Vea was cooking a roast. They were sitting
on the balcony, which adjoins the kitchen. The appellant and
the complainant had a good deal to drink. He was telling the
complainant about his exploits as a boxer many years before.
050698 T14/SKH24 M/T COA 129/98
She evidently became tired of hearing about it, and made some
not very polite remark before going into the kitchen, as she
said, to get herself another glass of wine. In evidence she
said that he followed her in and punched her in the jaw. She
was knocked to the floor, banging the back of her head on the
tiles, and when she got to her feet he struck her again in the
jaw. She left the unit in some distress and went to the unit
of another occupier in the building, a Mr Delaney, who was a
prosecution witness at the trial.

The police were called and arrived at some time, it would seem, after 11 p.m. that evening. It was only after that that the complainant was taken to hospital; but, because of the number of patients who were waiting there to be looked after, she went away and came back again later, with the result that she was not treated until early on the following morning.

Jill Vea gave evidence at the trial which confirmed, but also
differed in some respects from, the evidence given by the
complainant. She agreed that,…

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 Silvester

Details

AGLC: R v Silvester [1998] QCA 194
Case: [1998] QCA 194
Decision Date: 5/06/1998

CaseChat Overview and Summary

In the case of R v Silvester, the appellant, Desmond Patrick Silvester, was convicted in the District Court for inflicting grievous bodily harm on Adele Johnston on May 14, 1996. The appellant lived with his de facto wife, Jill Vea, and the incident occurred when the complainant visited their unit to share dinner. The prosecution argued that the appellant inflicted two punches on the complainant, resulting in a broken jaw, which led to permanent facial disfigurement and sensory issues. The appellant did not testify, and the jury relied on the testimonies of the complainant and Mrs Vea to convict him.

The legal issues in this appeal pertained to the validity of the conviction and the sentence imposed. The appellant raised several points, including discrepancies in witness testimonies and the timing of events, but none of these directly challenged the core issue of whether he had assaulted the complainant. The Court of Appeal found that the discrepancies did not impact the reliability of the evidence on the central issue, and the jury's verdict was deemed reliable and satisfactory. Furthermore, the Court of Appeal rejected the appellant's claims regarding the trial process and the prosecutor's remarks as unfounded.

Regarding the sentence, the appellant was sentenced to 18 months imprisonment, which the Court of Appeal considered appropriate given the nature of the offence and the appellant's criminal history. The trial judge had taken into account the appellant's health issues when determining the sentence. The Court of Appeal concluded that the appeal against conviction should be dismissed and the application for leave to appeal against sentence should be refused.

In summary, the orders of the Court of Appeal were to dismiss the appeal against conviction and to refuse the application for leave to appeal against sentence.

Orders