R v Sullivan & Marshall - [2000] QCA 393

SUPREME COURT OF QUEENSLAND

CITATION: R v Sullivan & Marshall [2000] QCA 393

PARTIES: R
v
SULLIVAN, Roger John
MARSHALL, Faren Vance
(appellants)

FILE NO/S: CA No 115 of 2000
CA No 116 of 2000
DC No 907 of 1999

DIVISION: Court of Appeal

PROCEEDING: Appeals against Conviction

ORIGINATING COURT:
District Court at Mount Isa

DELIVERED ON: 29 September 2000

DELIVERED AT: Brisbane

HEARING DATE: 15 August 2000

JUDGES:
Davies and Pincus JJA, Chesterman J

Separate reasons for judgment of each member of the Court; Davies JA and Chesterman J concurring as to the orders made, Pincus JA dissenting

ORDER: Appeals against conviction allowed; convictions set aside.

CATCHWORDS:
CRIMINAL LAW – GENERAL MATTERS – ANCILLARY LIABILITY – COMPLICITY – AIDER AND ABETTOR – appellants and third person charged with assault occasioning bodily harm in company – appellants' criminal responsibility arose by way of s 7 Criminal Code

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – OTHER OFFENCES AGAINST THE PERSON – ASSAULTS – CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS – ASSAULT OCCASIONING ACTUAL BODILY HARM

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – VERDICT – INCONSISTENT, AMBIGUOUS AND MEANINGLESS VERDICTS – PARTICULAR CASES – OFFENCES AGAINST THE PERSON – indictment against appellants and co-accused charged one count of assault occasioning bodily harm in company – co-accused convicted of assault occasioning bodily harm simpliciter – appellants convicted of common assault – whether such verdict open where assault in which appellants assisted was one which occasioned bodily harm – whether "merciful verdicts" – effect of s 10A(1) and s 584(1) Criminal Code

Criminal Code s 7, s 8, s 10A(1), s 567(1), s 575, s 584(1)

Barlow (1997) 188 CLR 1, considered

Biddle v Dimmock CA No 136 of 1992, 21 August 1992, considered

Cramp [1999] NSWCCA 324, considered
Eades (1991) 57 A Crim R 151, considered

Giorgianni v The Queen (1984-1985) 156 CLR 473, mentioned

G CA No 324 of 1991, 24 July 1992, considered
Jervis [1993] 1 Qd R 643, discussed
Kirkman (1987) 44 SASR 591, mentioned
Leivers & Ballinger [1999] 1 Qd R 649, considered
Mackenzie v The Queen (1996) 190 CLR 348, followed
Morrow & Flynn [1991] 2 Qd R 309, considered
Triffylis CA No 358 of 1998, 11 December 1998, considered

COUNSEL: A W Moynihan for the appellants
W A Clark for the respondent

SOLICITORS: Legal Aid Queensland for the appellants
Director of Public Prosecutions (Queensland) for the respondent

DAVIES JA: I have had the advantage of reading the reasons for judgment of Pincus JA and Chesterman J. Their Honours' detailed analyses of the facts and argument before this Court make it unnecessary for me to do more than state my reasons for that conclusion in summary form.

Indeed the relevant facts are not in dispute. The indictment alleged that all three, that is each of the appellants and Jackson, committed an assault occasioning bodily harm in company. As particularized by the prosecution case and as is common ground,…

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 Sullivan & Marshall

Details

AGLC: R v Sullivan & Marshall [2000] QCA 393
Case: [2000] QCA 393
Decision Date: 29 September 2000

CaseChat Overview and Summary

Sullivan and Marshall were convicted of common assault and appealed against their convictions. The third person involved was convicted of assault occasioning actual bodily harm. The appeal centred on whether the appellants could be found guilty of a lesser offence of common assault when they had assisted in an assault that resulted in bodily harm. The court needed to determine if the convictions were consistent with the evidence and if the jury’s verdicts could be considered “merciful verdicts” under the provisions of the Criminal Code.

The primary legal issue was whether the jury’s verdict of common assault for the appellants was permissible when the assault in which they participated resulted in actual bodily harm. The court examined whether the verdicts could be seen as “merciful verdicts” under section 10A(1) of the Criminal Code, which allows a jury to convict on a lesser included offence if they believe the evidence does not support the more serious charge. The court also considered the effect of section 584(1) of the Criminal Code, which requires that verdicts be consistent and not ambiguous or meaningless.

The court found that the jury’s verdicts were inconsistent because the appellants could not be convicted of common assault while also participating in an assault that caused actual bodily harm. The verdicts were therefore ambiguous and meaningless, as they did not align with the evidence presented. The court concluded that the verdicts could be considered “merciful verdicts” but noted that this did not resolve the inconsistency. Consequently, the appeals against the convictions were allowed, and the convictions were set aside.

Orders

Orders of the court

Appeals against conviction allowed; convictions set aside.

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 Sullivan & Marshall [2000] QCA 393
PARTIES:	R v SULLIVAN, Roger John MARSHALL, Faren Vance (appellants)
FILE NO/S:	CA No 115 of 2000 CA No 116 of 2000 DC No 907 of 1999
DIVISION:	Court of Appeal
PROCEEDING:	Appeals against Conviction
ORIGINATING COURT:	District Court at Mount Isa
DELIVERED ON:	29 September 2000
DELIVERED AT:	Brisbane
HEARING DATE:	15 August 2000
JUDGES:	Davies and Pincus JJA, Chesterman J Separate reasons for judgment of each member of the Court; Davies JA and Chesterman J concurring as to the orders made, Pincus JA dissenting
ORDER:	Appeals against conviction allowed; convictions set aside.
CATCHWORDS:	CRIMINAL LAW – GENERAL MATTERS – ANCILLARY LIABILITY – COMPLICITY – AIDER AND ABETTOR – appellants and third person charged with assault occasioning bodily harm in company – appellants' criminal responsibility arose by way of s 7 Criminal Code CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – OTHER OFFENCES AGAINST THE PERSON – ASSAULTS – CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS – ASSAULT OCCASIONING ACTUAL BODILY HARM CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – VERDICT – INCONSISTENT, AMBIGUOUS AND MEANINGLESS VERDICTS – PARTICULAR CASES – OFFENCES AGAINST THE PERSON – indictment against appellants and co-accused charged one count of assault occasioning bodily harm in company – co-accused convicted of assault occasioning bodily harm simpliciter – appellants convicted of common assault – whether such verdict open where assault in which appellants assisted was one which occasioned bodily harm – whether "merciful verdicts" – effect of s 10A(1) and s 584(1) Criminal Code Criminal Code s 7, s 8, s 10A(1), s 567(1), s 575, s 584(1) Barlow (1997) 188 CLR 1, considered Biddle v Dimmock CA No 136 of 1992, 21 August 1992, considered Cramp [1999] NSWCCA 324, considered Eades (1991) 57 A Crim R 151, considered Giorgianni v The Queen (1984-1985) 156 CLR 473, mentioned G CA No 324 of 1991, 24 July 1992, considered Jervis [1993] 1 Qd R 643, discussed Kirkman (1987) 44 SASR 591, mentioned Leivers & Ballinger [1999] 1 Qd R 649, considered Mackenzie v The Queen (1996) 190 CLR 348, followed Morrow & Flynn [1991] 2 Qd R 309, considered Triffylis CA No 358 of 1998, 11 December 1998, considered
COUNSEL:	A W Moynihan for the appellants W A Clark for the respondent
SOLICITORS:	Legal Aid Queensland for the appellants Director of Public Prosecutions (Queensland) for the respondent