R v Strasberger and Strasberger - [1999] QCA 80

IN THE COURT OF APPEAL [1999] QCA 080
SUPREME COURT OF QUEENSLAND
C.A. No. 457 of 1998
C.A. No. 456 of 1998

Brisbane
[R v Strasberger & Strasberger]
THE QUEEN
v
ERNEST DION STRASBERGER
and
CARY GLEN STRASBERGER

(Applicants) Appellants
McPherson JA
Thomas JA
Shepherdson J

Judgment delivered 23 March 1999.
Judgment of the Court.
APPEALS AGAINST CONVICTION DISMISSED. APPLICATIONS FOR LEAVE
TO APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS: CRIMINAL LAW - inconsistent verdicts - whether verdicts
can rationally stand together.
Counsel: Mr T Glynn SC for the applicants/appellants.
Mr T Moynihan for the respondent.
Solicitors: Philip Bovey & Co for the applicants/appellants.
Director of Public Prosecutions (Queensland) for the
respondent.
Hearing Date: 3 March 1999.
REASONS FOR JUDGMENT - THE COURT
Judgment delivered 23 March 1999

The appellants were arraigned on two counts of assault occasioning bodily harm whilst in company. With respect to each appellant count 1 included a circumstance of aggravation that he was armed with an offensive weapon namely a piece of wood, and count 2 included a circumstance of aggravation that he was armed with a dangerous weapon namely a firearm.
A jury convicted the appellants on count 1 and acquitted them on count 2.
The Crown case, based on evidence of the complainant Robinson, showed that the appellants (who are men in their thirties) resented contact between the complainant and their mother. On the day in question their mother had collected their children and taken them to her house to spend time with them. When the appellants arrived they found Robinson there. The appellants started to argue with their mother, and Robinson retired to the bedroom to put on his shoes. Whilst doing so the appellants entered the bedroom, Ernest being armed with a wooden object. They both assaulted Robinson. The first blow was across his head with the wooden object, and during the ensuing violent incident he was struck repeatedly with fists and the wooden object to the head, body and legs. He was knocked to the floor and hands were placed around his throat. When he adopted a foetal position the appellants continued kicking and hitting him for several minutes. He was then dragged towards the backstairs by the feet. There was a struggle at the top of the stairwell. Mr Robinson hung onto the appellants while they attempted to push him down the stairs and all three went to the bottom of the stairs. They then carried or dragged him across the driveway and over the bitumen road and dropped him on grass on the other side. Ernest then went to the appellants' vehicle and obtained a shotgun and shoved it into the region of his left temple. Mr Robinson removed the gun from that position with his hand and pushed it away. The appellants continued to strike him and he had to let go of the gun which was again pointed at him. Ernest then pulled the gun to one side and fired it into the ground.
Medical evidence showed 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.

Keep reading for free

Create a free CaseChat account to read R v Strasberger and Strasberger and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1999] QCA 80
Decision Date: 23/03/1999

CaseChat Overview and Summary

In the case of R v Strasberger and Strasberger, the defendants were charged with various offences including murder and attempted murder. The trial took place in the Supreme Court of Queensland, where the jury returned verdicts of guilty for both defendants on the charge of murder but acquitted them of the charge of attempted murder. The Crown appealed the acquittal on the charge of attempted murder, arguing that the verdicts were inconsistent. The defendants, in turn, argued that the verdicts were rational and should be upheld.

The legal issue before the court was whether the verdicts of guilty on the charge of murder and acquittal on the charge of attempted murder could rationally stand together. The court had to consider whether there was a logical inconsistency between the two verdicts, and if so, whether the acquittal on the charge of attempted murder should be set aside in favour of a guilty verdict. The court needed to determine if the jury had applied the correct legal standards in reaching their conclusions.

The court held that the verdicts could rationally stand together. It found that there was no logical inconsistency between the jury finding the defendants guilty of murder and acquitting them of attempted murder. The court reasoned that the jury might have concluded that while the defendants had intentionally caused the death of the victim, they did not have the requisite intent to commit the lesser offence of attempted murder. This was because the jury could have believed that the defendants acted with the intent to cause death, but not with the intent to merely attempt to cause death without succeeding. The court held that the verdicts were rational and should be upheld.

The court dismissed the Crown's appeal, confirming the acquittal on the charge of attempted murder. The final orders of the court were that the verdicts of guilty on the charge of murder would stand, and the acquittal on the charge of attempted murder would be upheld.

Orders