R v Tapara - [2010] QCA 320

SUPREME COURT OF QUEENSLAND

CITATION:

R v Tapara [2010] QCA 320

PARTIES:

R
v
TAPARA, Phillip Shayne
(appellant/applicant)

FILE NO/S:

CA No 166 of 2010
CA No 171 of 2010
SC No 5 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

16 November 2010

DELIVERED AT:

Brisbane

HEARING DATE:

4 November 2010

JUDGES:

Muir and Chesterman JJA and McMeekin J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. The appeal against conviction is dismissed.

2. The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where appellant charged with attempting to unlawfully kill the complainant; alternatively with doing grievous bodily harm with intent – where appellant convicted on the second count – whether it was reasonable for the jury to conclude the appellant did not intend to kill the complainant but did intend to cause grievous bodily harm – whether appellant’s plea of guilty to further alternative charge of dangerously operating a vehicle thereby causing grievous bodily harm with the circumstance of aggravation prejudiced his defence of counts 1 and 2

CRIMINAL LAW – PROCEDURE – INFORMATION, INDICTMENT OR PRESENTMENT – AMENDMENT – IMMATERIALITY OR ABSENCE OF PREJUDICE – where the indictment mistakenly omitted the word “unlawfully” in its recital of the offence of doing grievous bodily harm – where appellant’s counsel agreed the indictment be amended to include the word “unlawfully” – where the amendment was not material to the merits of the case – whether the amendment prejudiced the appellant’s trial

CRIMINAL LAW – PROCEDURE – JURIES – DISCHARGE AND EXCUSING FROM ATTENDANCE – INDIVIDUAL JURORS – where one juror was discharged after the conclusion of the summing up because of a family emergency – where this course was permitted by s 56(1)(c) of the Jury Act 1995 (Qld) – whether the conviction by 11 jurors was unsound

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where appellant deliberately drove his car into the complainant out of revenge or retaliation causing injury – where appellant sentenced to five and a half years’ imprisonment for doing grievous bodily harm with intent – where appellant pleaded guilty to a lesser charge of dangerously operating a vehicle thereby causing grievous bodily harm with the circumstance of aggravation – where appellant’s criminal history was in the distant past – where complainant fortuitously did not suffer permanent injuries – whether sentence manifestly excessive

Criminal Code 1899 (Qld), s 317, s 572, s 597C(3)
Jury Act 1995 (Qld), s 56(1)(c)

R v Eade[2005] QCA 148, cited
R v LT [2006] QCA 534, cited
R v Nielsen[2006] QCA 2, considered

COUNSEL:

The appellant appeared on his own behalf
D Meredith for the respondent

SOLICITORS:

The appellant…

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 Tapara

Details

AGLC: R v Tapara [2010] QCA 320
Case: [2010] QCA 320
Decision Date: 16 November 2010

CaseChat Overview and Summary

The appellant, Tapara, appealed against his conviction for doing grievous bodily harm with intent, alternatively attempting to unlawfully kill the complainant. The appellant also sought leave to appeal against his sentence. The case was heard in the Queensland Court of Appeal. The appeal against conviction raised issues concerning inconsistent verdicts, the impact of the appellant's guilty plea on a lesser charge, and the amendment to the indictment. The appeal against sentence questioned whether the sentence of five and a half years was manifestly excessive.

The court considered whether it was reasonable for the jury to conclude that the appellant did not intend to kill but did intend to cause grievous bodily harm. The appellant’s plea of guilty to a lesser charge was examined to determine if it prejudiced his defence on the main charges. The court also assessed whether the amendment to the indictment, which omitted the word "unlawfully," prejudiced the appellant's trial. Furthermore, the court examined whether the conviction by 11 jurors, after one was excused due to a family emergency, was valid.

The Court of Appeal found that the jury's conclusion that the appellant did not intend to kill but did intend to cause grievous bodily harm was reasonable. The appellant's guilty plea to a lesser charge did not prejudice his defence on the main charges. The omission of the word "unlawfully" in the indictment was not material and did not prejudice the appellant’s trial. The conviction by 11 jurors was deemed sound under the provisions of the Jury Act 1995 (Qld). The court held that the sentence was not manifestly excessive, considering the appellant's criminal history, the nature of the offence, and the fortuitous outcome for the complainant.

The appeal against conviction was dismissed, and the application for leave to appeal against sentence was refused.

Orders

Orders of the court

1. The appeal against conviction is dismissed.

2. The application for leave to appeal against sentence is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Tapara [2010] QCA 320
PARTIES:	R v TAPARA, Phillip Shayne (appellant/applicant)
FILE NO/S:	CA No 166 of 2010 CA No 171 of 2010 SC No 5 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	16 November 2010
DELIVERED AT:	Brisbane
HEARING DATE:	4 November 2010
JUDGES:	Muir and Chesterman JJA and McMeekin J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The appeal against conviction is dismissed. 2. The application for leave to appeal against sentence is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where appellant charged with attempting to unlawfully kill the complainant; alternatively with doing grievous bodily harm with intent – where appellant convicted on the second count – whether it was reasonable for the jury to conclude the appellant did not intend to kill the complainant but did intend to cause grievous bodily harm – whether appellant’s plea of guilty to further alternative charge of dangerously operating a vehicle thereby causing grievous bodily harm with the circumstance of aggravation prejudiced his defence of counts 1 and 2 CRIMINAL LAW – PROCEDURE – INFORMATION, INDICTMENT OR PRESENTMENT – AMENDMENT – IMMATERIALITY OR ABSENCE OF PREJUDICE – where the indictment mistakenly omitted the word “unlawfully” in its recital of the offence of doing grievous bodily harm – where appellant’s counsel agreed the indictment be amended to include the word “unlawfully” – where the amendment was not material to the merits of the case – whether the amendment prejudiced the appellant’s trial CRIMINAL LAW – PROCEDURE – JURIES – DISCHARGE AND EXCUSING FROM ATTENDANCE – INDIVIDUAL JURORS – where one juror was discharged after the conclusion of the summing up because of a family emergency – where this course was permitted by s 56(1)(c) of the Jury Act 1995 (Qld) – whether the conviction by 11 jurors was unsound CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where appellant deliberately drove his car into the complainant out of revenge or retaliation causing injury – where appellant sentenced to five and a half years’ imprisonment for doing grievous bodily harm with intent – where appellant pleaded guilty to a lesser charge of dangerously operating a vehicle thereby causing grievous bodily harm with the circumstance of aggravation – where appellant’s criminal history was in the distant past – where complainant fortuitously did not suffer permanent injuries – whether sentence manifestly excessive Criminal Code 1899 (Qld), s 317, s 572, s 597C(3) Jury Act 1995 (Qld), s 56(1)(c) R v Eade[2005] QCA 148, cited R v LT [2006] QCA 534, cited R v Nielsen[2006] QCA 2, considered
COUNSEL:	The appellant appeared on his own behalf D Meredith for the respondent
SOLICITORS:	The appellant…