R v Walker - [1997] QCA 140

IN THE COURT OF APPEAL	[1997] QCA 140
SUPREME COURT OF QUEENSLAND

C.A. No. 60 of 1997

Brisbane

Before

Fitzgerald P.
Davies J.A.
McPherson J.A.

[R. v. Walker]

THE QUEEN

SCOTT WALKER

(Applicant) Appellant
Fitzgerald P.
Davies J.A.
McPherson J.A.

Judgment delivered 30 May 1997

Separate reasons for judgment of Fitzgerald P.; joint reasons for judgment of Davies and

McPherson JJ.A., concurring as to the orders made.

APPEAL AGAINST CONVICTION DISMISSED.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED.
APPEAL ALLOWED. THE SENTENCES OF IMPRISONMENT FOR TWO AND A
HALF YEARS AND 18 MONTHS IMPOSED BELOW ARE SET ASIDE,
SUBSTITUTING IN RESPECT OF EACH OF THE MATERIAL OFFENCES A

SENTENCE OF IMPRISONMENT FOR 12 MONTHS.

CATCHWORDS:	CRIMINAL LAW - assault - appeal against convictions and sentences for assault occasioning bodily harm x 2, assault occasioning bodily harm in company and wilful damage - appellant and companion involved in drunken scuffle with publican and employee in hotel - appellant cross-examined about his participation in video lineup and his exercise of the right to silence - whether cross- examination of appellant amounted to miscarriage of justice.
SENTENCE - appellant sentenced to two and a half years imprisonment for assault occasioning bodily harm in company and 18 months’ imprisonment for assault occasioning bodily harm - whether sentences manifestly excessive.
Counsel:	Mr A. Kimmins for the applicant/appellant. Mrs L. Clare for the respondent.
Solicitors:	Tony Bailey, Solicitor for the applicant/appellant. Queensland Director of Public Prosecutions for the respondent.
Hearing Date:	24 April 1997

REASONS FOR JUDGMENT - FITZGERALD P.
Judgment delivered 30 May 1997

The appellant has appealed against his conviction in the District Court at Southport on 31 January 1997 of two offences of unlawful assault occasioning bodily harm, one offence of unlawful assault occasioning bodily harm in company and one offence of wilfully and unlawfully damaging a door. He was sentenced to imprisonment for two and a half years in respect of the unlawful assault occasioning bodily harm in company, to 18 months in respect of one of the unlawful assaults occasioning bodily harm, and to one year in respect of each of the other offences. He has also applied for leave to appeal against sentence.

On 22 November 1995, the appellant and a companion were drunk and disorderly at a hotel on the Gold Coast and were requested by the publican, Mr Nation, to leave. As was acknowledged for the appellant, the jury must have accepted that the publican removed a pool cue from the appellant and rejected the appellant’s evidence that the publican, Mr Nation, then swung the pool cue like a baseball bat. As the publican turned away after taking the pool cue, the appellant punched him in the face. That blow led to the conviction for the offence of unlawful assault occasioning bodily harm which attracted the sentence of imprisonment for 18 months.

An employee at the hotel, Mr Finch, placed a headlock on the appellant to prevent him from hitting Mr Nation again. Finch was then…

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 Walker

Details

AGLC: R v Walker [1997] QCA 140
Case: [1997] QCA 140
Decision Date: 30/05/1997

CaseChat Overview and Summary

In this matter, the appellant, Walker, has appealed against his convictions and sentences for multiple counts of assault occasioning bodily harm, and one count of assault occasioning bodily harm in company, as well as for wilful damage. The case arose from an incident in a hotel where the appellant, along with a companion, engaged in a violent altercation with the publican and an employee of the hotel. The dispute revolves around whether the trial judge's handling of the cross-examination of the appellant during the trial led to a miscarriage of justice.

The primary legal issues before the court were whether the trial judge's cross-examination of the appellant regarding his involvement in a video lineup and his decision to exercise the right to silence was prejudicial and whether this amounted to a miscarriage of justice. The appellant argued that the cross-examination was improper and had the effect of undermining his credibility and potentially influencing the jury's verdict.

The court considered the extent to which the trial judge's questioning went beyond permissible limits and whether it unfairly impacted the appellant's right to a fair trial. The court found that while the trial judge's approach was robust, it did not reach the level of a miscarriage of justice. The court held that the trial judge's conduct was within acceptable bounds and did not result in a denial of a fair trial for the appellant. Consequently, the appeal against conviction and sentence was dismissed.

Orders