R v Walsh - [2005] QCA 333

SUPREME COURT OF QUEENSLAND

CITATION:

R v Walsh [2005] QCA 333

PARTIES:

R
v
WALSH, Thomas James
(appellant/applicant)

FILE NO/S:

CA No 114 of 2005
DC No 1193 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

9 September 2005

DELIVERED AT:

Brisbane

HEARING DATE:

29 August 2005

JUDGES:

Jerrard and Keane JJA and Fryberg J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeal dismissed

2. Application for leave to appeal against sentence dismissed

CATCHWORDS:

APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE APPEAL DISMISSED - where the appellant was alleged to have entered a dwelling in company with others and stolen a significant amount of property - where this stolen property included 13 model cars - where it was also alleged that the appellant had assaulted a person residing in the house during the burglary - where the appellant was convicted after trial of one count of burglary and stealing - where the appellant was acquitted of the charge of unlawful assault - where it was the same witness who identified the appellant as a person present at the burglary and as the person who committed the assault - where there were inconsistencies between the statement given by this witness to police and the evidence given at trial as to the identity of the person responsible for the assault - where the witness consistently identified the appellant as a person who had been present during the burglary - where nine model cars identical to those alleged to have been stolen were found in the appellant's house - whether the jury had rejected evidence in order to acquit that they must necessarily have accepted in order to convict - whether there was a rational explanation for the verdicts returned by the jury

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - PARTICULAR OFFENCES - PROPERTY OFFENCES - where appellant had been involved in stealing property worth approximately $16,000 - where counsel for the appellant had submitted an appropriate sentence was imprisonment for between 18 months and two and a half years - where appellant was sentenced to two years imprisonment - where appellant had lengthy criminal history and had previously been sentenced to imprisonment - whether any error had been shown in the sentence imposed

Jones v The Queen (1997) 191 CLR 439, cited

M v The Queen (1994) 181 CLR 487, cited

Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316, cited

COUNSEL:

A J Donaldson, with J D Griffiths, for the appellant/applicant
P F Rutledge for the respondent

SOLICITORS:

No appearance for the appellant/applicant
Director of Public Prosecutions (Queensland)…

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 Walsh

Details

AGLC: R v Walsh [2005] QCA 333
Case: [2005] QCA 333
Decision Date: 9 September 2005

CaseChat Overview and Summary

The case of R v Walsh involved the appellant who was alleged to have participated in a burglary and theft, including the theft of 13 model cars, and an assault on a resident of the house during the burglary. The appellant was convicted of burglary and stealing, but acquitted of the charge of unlawful assault. The witness who identified the appellant as both a burglar and the person who committed the assault provided inconsistent evidence regarding the identity of the person responsible for the assault, although they consistently identified the appellant as present during the burglary. Nine model cars identical to those stolen were found in the appellant's possession. The appellant appealed against his conviction and sentence, arguing that the jury's verdict was unreasonable or insupportable, and that the sentence imposed was excessive.

The legal issues before the court were whether the jury's verdict was unreasonable or insupportable, and if there was a rational explanation for the inconsistent verdicts. The court also had to consider whether any error had been shown in the sentence imposed, given the appellant's criminal history and the value of the stolen property. The court examined the evidence and the jury's reasoning to determine if the jury's decision was rational and whether the sentence was appropriate. The court noted that while the witness's evidence was inconsistent, it did not necessarily render the verdict unreasonable. The court also found that the sentence imposed was within the appropriate range considering the appellant's criminal history and the value of the stolen property.

In dismissing the appeal, the court found that the jury's verdict was rational and there was no basis to conclude that the jury had rejected evidence in order to acquit that they must necessarily have accepted in order to convict. The court held that the jury's decision to acquit the appellant of the assault charge was consistent with their acceptance of the evidence regarding the burglary and theft. The court also found that the sentence imposed was appropriate given the appellant's criminal history and the circumstances of the offence. The appeal against the sentence was also dismissed, as the court found no error in the sentence imposed.

The final orders of the court were to dismiss the appeal against the conviction and to dismiss the application for leave to appeal against the sentence. The appellant's conviction and sentence were upheld, and no further legal remedies were available to the appellant.

Orders

Orders of the court

1. Appeal dismissed

2. Application for leave to appeal against sentence dismissed

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 Walsh [2005] QCA 333
PARTIES:	R v WALSH, Thomas James (appellant/applicant)
FILE NO/S:	CA No 114 of 2005 DC No 1193 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	9 September 2005
DELIVERED AT:	Brisbane
HEARING DATE:	29 August 2005
JUDGES:	Jerrard and Keane JJA and Fryberg J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal dismissed 2. Application for leave to appeal against sentence dismissed
CATCHWORDS:	APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE APPEAL DISMISSED - where the appellant was alleged to have entered a dwelling in company with others and stolen a significant amount of property - where this stolen property included 13 model cars - where it was also alleged that the appellant had assaulted a person residing in the house during the burglary - where the appellant was convicted after trial of one count of burglary and stealing - where the appellant was acquitted of the charge of unlawful assault - where it was the same witness who identified the appellant as a person present at the burglary and as the person who committed the assault - where there were inconsistencies between the statement given by this witness to police and the evidence given at trial as to the identity of the person responsible for the assault - where the witness consistently identified the appellant as a person who had been present during the burglary - where nine model cars identical to those alleged to have been stolen were found in the appellant's house - whether the jury had rejected evidence in order to acquit that they must necessarily have accepted in order to convict - whether there was a rational explanation for the verdicts returned by the jury CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - PARTICULAR OFFENCES - PROPERTY OFFENCES - where appellant had been involved in stealing property worth approximately $16,000 - where counsel for the appellant had submitted an appropriate sentence was imprisonment for between 18 months and two and a half years - where appellant was sentenced to two years imprisonment - where appellant had lengthy criminal history and had previously been sentenced to imprisonment - whether any error had been shown in the sentence imposed Jones v The Queen (1997) 191 CLR 439, cited M v The Queen (1994) 181 CLR 487, cited Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316, cited
COUNSEL:	A J Donaldson, with J D Griffiths, for the appellant/applicant P F Rutledge for the respondent
SOLICITORS:	No appearance for the appellant/applicant Director of Public Prosecutions (Queensland)…