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 2010DIVISION:
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 madeORDERS:
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, consideredCOUNSEL:
The appellant appeared on his own behalf
D Meredith for the respondentSOLICITORS:
The appellant…
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- AGLC
- R v Tapara [2010] QCA 320
- Case
- [2010] QCA 320
- Decision Date
CaseChat Overview and Summary
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
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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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