R v Whiting; ex parte Attorney-General - [1994] QCA 425

IN THE COURT OF APPEAL [1994] QCA 425

SUPREME COURT OF QUEENSLAND

Brisbane

Before

Davies J.A.
McPherson J.A.
Derrington J.

[R. v. Whiting]

C.A. No. 321 of 1994

T H E Q U E E N

BARRY JAMES WHITING

(Respondent)
ATTORNEY-GENERAL OF QUEENSLAND
(Appellant)

T H E Q U E E N

BARRY JAMES WHITING (Respondent)

ATTORNEY-GENERAL OF QUEENSLAND (Appellant)

Davies J.A.

McPherson J.A. Derrington J.

Judgment delivered 24/10/94

Reasons for judgment by the Court

IN C.A. NO. 324 of 1994:
APPEAL AGAINST CONVICTION DISMISSED.
IN C.A. NO. 321 OF 1994:
APPEAL AGAINST SENTENCE ALLOWED; SENTENCE VARIED TO ONE OF
IMPRISONMENT FOR 11 YEARS. ORDER TO STATE:

(A)THE OFFENDER WAS IN CUSTODY IN RELATION TO PROCEEDINGS FOR

THIS OFFENCE, AND FOR NO OTHER REASON, BETWEEN 21 MARCH
1993 AND 14 JULY 1994;

(B)THAT PERIOD WAS 480 DAYS;

(C)THE PERIOD OF 480 DAYS IS DECLARED TO BE IMPRISONMENT ALREADY

SERVED UNDER THE SENTENCE;

(D)THE RECORDS OF THE COURT ARE TO BE NOTED TO REFLECT SUCH DECLARATION; AND

(E)THE COMMISSION IS TO BE ADVISED OF THE DECLARATION AND ITS

DETAILS.

CATCHWORDS: CRIMINAL LAW - MANSLAUGHTER - van den Bemd

direction - Whether double negative confusing.

CRIMINAL LAW - SENTENCE - Manslaughter - Wife died after attempted strangulation stimulated vagus nerve - Applicability of R. v. Green [1986] 2 Qd.R. 406 discussed - History of episodic violence to women.

Counsel:T. Carmondy for the appellant/respondent

M. Byrne Q.C. for the respondent/appellant (A-G)

Solicitors:	Legal Aid Office for the appellant/respondent
Director of Prosecutions for the respondent/appellant (A-G)

Hearing Date:16 October 1994

REASONS FOR JUDGMENT - THE COURT

Judgment delivered the 24th day of October 1994

Barry James Whiting, who is referred to here as the appellant, was tried in the Supreme Court at Townsville for the murder of his wife. He was acquitted of murder but convicted of manslaughter and sentenced to imprisonment for 8 years. This is an appeal by him against his conviction, which was heard together with an appeal by the Attorney-General against the

inadequacy of the sentence imposed.

The only ground of appeal which this Court needs to consider concerns a portion of the summing up. The notice of appeal contains another ground, which complained of the Judge's omission in summing up to refer to or expound the express terms of s.23 of the Criminal Code; but this ground of appeal was not pursued before us. In disposing of it, it is enough to say that

there is no duty resting on a trial judge to read to the jury the provisions of any section of the Code. His or her function

is to ensure that the issues for decision at the trial are

simply but adequately presented to the jury without unnecessary emphasis on abstract legal concepts or theories. As the learned judge remarked at one stage in the course of this trial, what he had to do was to tell the jury "the Crown must prove these things", rather than give them a short lecture on the…

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.

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Details

Case: [1994] QCA 425
Decision Date: 24/10/1994

CaseChat Overview and Summary

The case of The Queen v Barry James Whiting involves an appeal against both the conviction and sentence imposed by the Supreme Court of Queensland. Whiting was tried for the murder of his wife and, while acquitted of murder, was convicted of manslaughter and sentenced to eight years of imprisonment. The appeal against conviction was brought by the Attorney-General, who argued that the sentence was inadequate. Whiting argued that the double negative in the summing up may have confused the jury, leading to an unfair conviction.

The key legal issues before the court were whether the trial judge's use of a double negative in the summing up constituted a significant error, and whether the sentence imposed was appropriate given the nature of the offence and Whiting's history of violence. The court considered the precedent set in van den Bemd, which had affirmed the use of double negatives in summing up, and concluded that the summing up in this case was comprehensible to an ordinary juror. Therefore, the appeal against conviction was dismissed.

Regarding the sentence, the court noted that Whiting had a history of episodic violence against women and that the original sentence did not adequately reflect the seriousness of the offence. The court rejected the notion of an upper limit for sentencing in domestic manslaughter cases, as suggested by R. v. Green, and instead considered the appropriate sentence to be one of 11 years imprisonment. The appeal against the sentence was allowed, and the sentence was varied accordingly. The court also ordered that the 480 days Whiting had already served in custody should be declared as imprisonment already served under the new sentence.

Orders