R v W - [1999] QCA 202

[1999] QCA 202

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 490 of 1998

Brisbane

[R v. W]

THE QUEEN

(Applicant) Appellant
McMurdo P
Derrington J
Chesterman J

Judgment delivered 4 June 1999

Separate reasons for judgment of each member of the Court; each concurring as to the orders made

APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS: CRIMINAL - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - causing grievous bodily harm to a child - very severe blow to child’s head - whether learned trial judge should have directed jury on second limb of s.23 Code when matter not fairly raised by the defence - meaning of “event”
CRIMINAL - APPEAL AGAINST SENTENCE - whether sentence imposed of 4 years’ imprisonment was manifestly excessive
Charlie v The Queen (1999) HCA 23, 13 May 1999
R v Taiters ex parte Attorney-General [1997] 1 QdR 333
R v Van Den Bemd (1994) 179 CLR 137
The Distillers Co Biochemicals (Australia) Pty Ltd v Ajax Insurance Co Ltd (1974) 130 CLR 1
The Queen v West (CA No.288 of 1996, 26 November 1996)
Criminal Code s.23

Counsel:Mr W J Cuthbert for the appellant/applicant
Mr C Heaton for the respondent

Solicitors:Robinson Haskin for the appellant/applicant
Director of Public Prosecutions (Queensland) for the respondent

Hearing Date: 13 May 1999

REASONS FOR JUDGMENT - McMURDO P

Judgment delivered 4 June 1999

I have had the advantage of reading the reasons for judgment of Derrington J and agree with him that the appeal against conviction should be dismissed generally for the reasons given by him.
I agree with Derrington J that the application for leave to appeal against sentence should be refused for the reasons given by him.

REASONS FOR JUDGMENT - DERRINGTON J

Judgment delivered 4 June 1999

Appeal against Conviction

The appellant was convicted of causing grievous bodily harm to his step-child, the son of his partner, who was then a little under three years old. The child suffered a serious head injury causing internal bleeding which the expert medical witness believed, and which must have been found by the jury to have been, the result of a very severe blow to the skull. It was necessary to the conviction that it was caused by a force well beyond the result of ordinary trauma such as a simple fall, for the appellant denied having applied any force at all to the child at the relevant time. Unless the force was of such magnitude, the jury could not have inferred that it must have been inflicted by him.
In that regard the description of the force necessary to cause the injury as deposed to by the prosecution’s medical expert must have excluded any possibility that the injury suffered by the child would not have been a reasonably foreseeable consequence of that force. The jury was directed that they could not convict unless they were satisfied beyond reasonable doubt that the force…

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 W

Details

AGLC: R v W [1999] QCA 202
Case: [1999] QCA 202
Decision Date: 4 June 1999

CaseChat Overview and Summary

The Court of Appeal in Queensland reviewed an appeal against a conviction and an application for leave to appeal against a sentence. The appellant, W, was convicted of causing grievous bodily harm to his step-child, a child under three years old, who suffered a serious head injury. The appellant denied applying any force to the child, and the severity of the force necessary to cause the injury was central to the conviction. The appellant's primary contention on appeal was that the jury should have been directed to consider whether the harm was an unforeseeable consequence of the force used, as per section 23 of the Criminal Code. The court found that the trial judge correctly assessed the circumstances and determined that the severity of the force used made the injury reasonably foreseeable, thus negating the need for a direction on the second limb of section 23.

The court also considered the application for leave to appeal against the sentence of four years' imprisonment. The appellant, who had prior convictions but none involving violence, was deemed to have acted out of a loss of control without intending to inflict such severe injury. The court found that the sentence, while serious, was within the appropriate range given the nature of the offence and the need for deterrence. The court concluded that the sentence was not manifestly excessive and denied the application for leave to appeal against the sentence.

Orders