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R v Witchard

R v Witchard

Case [2004] QCA 429 12 November 2004

Appeal

Miscarriage of Justice

Unreasonable or Unsupportable Verdict

Aggravated & Exemplary Damages

Sentencing

Criminal Law

Type to search within this case.

SUPREME COURT OF QUEENSLAND

CITATION:

R v Witchard & Ors; ex parte A-G (Qld) [2004] QCA 429

PARTIES:

R
v
WITCHARD, Jennifer Faye
(appellant/applicant)

R
v
WITCHARD, Jennifer Faye
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

R
v
OAKES, John Noel
(appellant)

R
v
OAKES, John Noel
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

R
v
BARNETT, Wayne Lindsay
(applicant)

R
v
BARNETT, Wayne Lindsay
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 105 of 2004
CA No 128 of 2004
CA No 152 of 2004
CA No 129 of 2004
CA No 120 of 2004
CA No 130 of 2004
SC No 3 of 2004
SC No 4 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction and Sentence
Appeal against Conviction
Sentence Application
Sentence Appeals by A-G (Qld)

ORIGINATING COURT:

Supreme Court at Bundaberg

DELIVERED ON:

12 November 2004

DELIVERED AT:

Brisbane

HEARING DATE:

30 July 2004

JUDGES:

de Jersey CJ, Mackenzie and Mullins JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.    In CA No 105 of 2004:

(a)   appeal against conviction dismissed
(b) leave to appeal against sentence refused

2.    In CA No 128 of 2004:

(a)   appeal against sentence allowed

      (b) the sentence of 12 years’ imprisonment imposed in the Supreme Court at Bundaberg on 2 April 2004 for the offence of attempted murder be set aside and, in lieu, the sentence of 15 years’ imprisonment be substituted

      (c) declare the conviction for attempted murder to be a conviction of a serious violent offence

      (d) affirm the other orders made in the Supreme Court at Bundaberg on 2 April 2004

3.     In CA No 152 of 2004:

      (a)   appeal against conviction dismissed

4.    In CA No 129 of 2004:

(a)   appeal against sentence allowed
(b) the sentence of six years’ imprisonment imposed in the Supreme Court at Bundaberg on 2 April 2004 for the offence of attempted murder be set aside and, in lieu, the sentence of nine years’ imprisonment be substituted
(c)   affirm the other orders made in the Supreme Court at Bundaberg on 2 April 2004

5.    In CA No 120 of 2004:

(a)   leave to appeal against sentence refused

6.     In CA No 130 of 2004:

      (a)   appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – whether defendant suffered substantial miscarriage of justice as a result of not being tried separately from co-defendants – whether risk of prejudicial and improper use in case against defendant of one co-defendant’s statement given to the police which was admissible in the case against that co-defendant only – whether risk of prejudicial or improper use of statement was avoided by directions given to jury – whether any prejudice was compounded by aspects of conduct of trial including statements by prosecutor in address – no substantial miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW…

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 Witchard

Details

AGLC: R v Witchard [2004] QCA 429
Case: [2004] QCA 429
Decision Date: 12 November 2004

CaseChat Overview and Summary

The appellants, who were convicted of attempted murder and other related charges, appealed against their convictions and sentences. The Court of Appeal considered various grounds of appeal, including whether the appellants suffered a substantial miscarriage of justice by not being tried separately from their co-defendants, and whether the risk of prejudicial and improper use of one co-defendant's statement was avoided by directions given to the jury. The Court also considered whether the appellants were entitled to the benefit of section 538 of the Criminal Code (Qld) on sentence, and whether the sentences imposed were manifestly inadequate.

The Court found that there was no substantial miscarriage of justice in the appellants' trials, as the risk of prejudicial and improper use of the co-defendant's statement was adequately addressed by the directions given to the jury. The Court also found that the appellants' convictions were supportable on the basis that they were either principal offenders or aided their co-defendant in the attempted murder. The Court held that the appellants were not entitled to the benefit of section 538 of the Criminal Code (Qld) on sentence, as they did not make a deliberate decision to desist from further conduct prosecuting the intention to kill the complainant. The Court found that the sentences imposed for the offence of attempted murder were manifestly inadequate, and increased the sentences accordingly.

The Court dismissed the appellants' appeals against their convictions in two of the appeals, and refused leave to appeal against sentence in one of the appeals. In the remaining appeals, the Court allowed the appeals against sentence and increased the sentences imposed for the offence of attempted murder. The Court also affirmed the other orders made in the Supreme Court at Bundaberg on 2 April 2004 in two of the appeals. The Court's final orders are set out in the case summary.

Orders

Orders of the court

1. In CA No 105 of 2004:

(a) appeal against conviction dismissed

(b) leave to appeal against sentence refused

2. In CA No 128 of 2004:

(a) appeal against sentence allowed

(b) the sentence of 12 years’ imprisonment imposed in the Supreme Court at Bundaberg on 2 April 2004 for the offence of attempted murder be set aside and, in lieu, the sentence of 15 years’ imprisonment be substituted

(d) affirm the other orders made in the Supreme Court at Bundaberg on 2 April 2004

3. In CA No 152 of 2004:

(a) appeal against conviction dismissed

4. In CA No 129 of 2004:

(a) appeal against sentence allowed

(b) the sentence of six years’ imprisonment imposed in the Supreme Court at Bundaberg on 2 April 2004 for the offence of attempted murder be set aside and, in lieu, the sentence of nine years’ imprisonment be substituted

5. In CA No 120 of 2004:

(a) leave to appeal against sentence refused

6. In CA No 130 of 2004:

(a) appeal against sentence dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

JERSEY CJ

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: JERSEY CJ

Full text does not contain this section.

Citations

AGLC Citation

R v Witchard [2004] QCA 429

Most Recent Citation

R v Evans [2004] QCA 458

Cases citing this decision · 14 of 14 shown

R v MDU
[2024] QCA 113 Para 33

…vented by circumstances independent of his will and not afterwards .” [19] R v Witchard; Ex parte Attorney-General (Qld) [2005] 1 Qd R 428; [2004] QCA 429. [20](1996) 90 A Crim R 405. [21] Witchard at [7]; Rogers at 411. Emphasis added.…
R v BEB
[2023] QCA 105 Para 33

…of the person’s will”, which provision is discussed and explained in R v Witchard & Ors; ex parte A-G (Qld) [2005] 1 Qd R 428; [2004] QCA 429. [12]To paraphrase what was said by the Court in R v Tevita [2006] QCA 131 at [10].…
R v Ali
[2018] QCA 212 Para 4

…ndependent of the person’s will”, which provision is discussed and explained in R v Witchard & Ors; ex parte A-G (Qld) [2005] 1 Qd R 428; [2004] QCA 429. [31]To paraphrase what was said by the Court in R v Tevita [2006] QCA 131, [10].…
R v Williams
[2015] QCA 276

…A 119, considered R v Tout [2012] QCA 296, cited R v Witchard; ex parte Attorney-General (Qld) [2005] 1 Qd R 428; [2004] QCA 429, considered COUNSEL: C W Heaton QC for the applicant S J Farnden for the respondent SOLICITORS: Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for t…
R v Graham
[2015] QCA 137

…131, considered R v Witchard; ex parte Attorney-General (Qld) [2005] 1 Qd R 428; [2004] QCA 429, considered COUNSEL: P D Davis QC for the appellant/applicant V A Loury for the respondent SOLICITORS: Grigor Lawyers for the appellant/applicant Director of Public Prosecutions (Queensland) for the respondent…
Wright v The Queen
[2015] QSC 178 Para 3

…to establish the conditions relevant for the application of the section. That view was taken by Mackenzie J in R v Witchard & Ors; ex parte A-G (Qld) [2004] QCA 429 ( Witchard ) at [50], and also at [30] as I read his Honour’s judgment..…
R v Seijbel-Chocmingkwan
[2014] QCA 119 Para 1

…case[41] and a then pending decision on s 538 of the Criminal Code .[42] [41] R v Folland [2004] QCA 209. [42] R v Witchard & Ors; ex parte A-G (Qld) [2004] QCA 429.…
R v John
[2014] QCA 86

…QCA 131, considered R v Witchard; ex parte Attorney-General (Qld) [2005] 1 Qd R 428; [2004] QCA 429, cited R v Woodman [2009] QCA 197, considered COUNSEL: C W Heaton QC for the appellant/applicant G Cummings for the respondent SOLICITORS: Legal Aid Queensland for the appellant/applicant Director of Public Prosec…
R v Meerdink
[2010] QCA 273

…[27]Ibid at [19]. To similar effect see the observation by Mullins J in R v Witchard; ex parte A-G (Qld) [2005] 1 Qd R 428; [2004] QCA 429 at 123.…
R v Keenan
[2009] QCA 236 Para 13

…bmitted that Keenan should be sentenced to between 12 and 15 years imprisonment. [6] Unreported, Supreme Court, Qld, Moynihan J, 20 April 2001. [7] [2004] QCA 429. The judge’s sentencing remarks…
R v Clark
[2009] QCA 2 Para 9

…examples of attempted murder than the present case. [13] Corrective Services Act 2006 (Qld), s 182(2)(a). [14] [2001] QCA 91. [15] [2005] 1 Qd R 428; [2004] QCA 429.…
R v Tevita
[2006] QCA 131

…nsidered R v Schaefer [2001] QCA 327; CA No 89 of 2001, 10 August 2001, considered R v Streeton [1997] QCA 178 R v Witchard [2004] QCA 429; [2005] 1 Qd R 428, considered The Queen v De Simoni (1981) 147 CLR 383, cited COUNSEL: A J Rafter SC for the applicant C W Heaton for the respondent SOLICITORS: Legal Aid Que…
R v Bargenquast & Holmes
[2004] QSC 481 Para 6

…nst one accused but not another, the complainant is also available to give direct evidence, as was the case in R v Witchard & Ors; ex parte A-G (Qld) [2004] QCA 429 (cf R v Crawford [1989] 2 Qd R 443).…
R v Evans
[2004] QCA 458 Para 1

…The last point may be disposed of briefly. Witchard has now been decided[12] and it is plain that the section cannot assist Ms Evans. [12][2004] QCA 429.…

View all 14 citing cases →

Cases cited in this decision · 10 of 10 shown

R v Gill; ex parte
[2004] QCA 139 Para 1

…(cf. R v Longshaw (1993) 114 FLR 423) and Malta. The Queensland provision was mentioned, but not considered, in R v Gill, ex parte Attorney-General [2004] QCA 139. R v Thompson, ex parte Attorney-General CA No 86 of 1989 provides an example of its application, where an accused attempting to penetrate a complainan…
R v Hess
[2003] QCA 553 Para 1

…1998] QCA 342; CA No 88 of 1998, 29 May 1998, R v Marks, ex parte Attorney-General [2002] QCA 34; CA No 268 of 2001, 18 February 2002, and R v Hess [2003] QCA 553; CA No 122 of 2003, 12 December 2003, and having regard to the sentence imposed on Oakes. The latter submission is no longer relevant in light of the i…
R v Rochester; ex parte A-G (Qld)
[2003] QCA 326 Para 1

…l of the Court of Appeal to increase the sentence of 10 years’ imprisonment on appeal by the Attorney in R v Rochester, ex parte Attorney-General [2003] QCA 326; CA No 362 of 2002 and CA No 399 of 2002, 1 August 2003, and the need to take into account the impact of the sentence, having regard to the provisions of…
R v Marks; ex parte Attorney-General of Queensland
[2002] QCA 34 Para 1

…s manifestly excessive, based on the sentences in R v Ishibashi [1998] QCA 342; CA No 88 of 1998, 29 May 1998, R v Marks, ex parte Attorney-General [2002] QCA 34; CA No 268 of 2001, 18 February 2002, and R v Hess [2003] QCA 553; CA No 122 of 2003, 12 December 2003, and having regard to the sentence imposed on Oa…
R v Schaefer
[2001] QCA 327 Para 1

…The Attorney also relied on the sentence in R v Schaefer [2001] QCA 327; CA No 89 of 2001, 10 August 2001. Schaefer was 22 years old at the time he committed the offence of attempted murder. He had a bitter relationship with his mother and held deep resentment against her. On the day of the offence he spent the d…
R v Bird and Schipper
[2000] QCA 94

…ces Act 1992 (Qld), s 161 R v Bird and Schipper [2000] QCA 94; (2000) 110 A Crim R 394, followed R v Booth [1999] QCA 100; [2001] 1 Qd R 393, followed R v Byers ; ex parte A-G (Qld) [1995] QCA 44; CA No 430 of 1994 and CA No 436 of 1994, 28 February 1995, considered R v Crawford [1989] 2 Qd R 443, distinguished…
R v Booth
[1999] QCA 100

…94; (2000) 110 A Crim R 394, followed R v Booth [1999] QCA 100; [2001] 1 Qd R 393, followed R v Byers ; ex parte A-G (Qld) [1995] QCA 44; CA No 430 of 1994 and CA No 436 of 1994, 28 February 1995, considered R v Crawford [1989] 2 Qd R 443, distinguished R v Gill; ex parte A-G (Qld) [2004] QCA 139; CA No 414 of 20…
R v Ishibashi
[1998] QCA 342 Para 1

…on behalf of Barnett that the sentence imposed on him of five years’ imprisonment was manifestly excessive, based on the sentences in R v Ishibashi [1998] QCA 342; CA No 88 of 1998, 29 May 1998, R v Marks, ex parte Attorney-General [2002] QCA 34; CA No 268 of 2001, 18 February 2002, and R v Hess [2003] QCA 553; C…
R v Byers and Attorney-General of Queensland
[1995] QCA 44 Para 1

…The submission was made on behalf of the Attorney that the observations in R v Byers, ex parte Attorney-General [1995] QCA 44, CA No 430 of 1994 and CA No 436 of 1994, 28 February 1995, were a useful starting point in considering the appropriate sentence for Witchard. Byers was convicted of attempted murder of h…
Webb v the Queen
[1994] HCA 30 Para 1

…een a substantial miscarriage of justice, or to put it another way, whether improper prejudice has been created against an accused ( Webb v The Queen (1994) 181 CLR 41, 89).…

Legislation cited in this decision · 2

Evidence Act 1977 (Qld)
132C 2 mentions (from Para 1)
Penalties and Sentences Act 1992 (Qld)
161 2 mentions (from Para 1)

CITATION:	R v Witchard & Ors; ex parte A-G (Qld) [2004] QCA 429
PARTIES:	R v WITCHARD, Jennifer Faye (appellant/applicant) R v WITCHARD, Jennifer Faye (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant) R v OAKES, John Noel (appellant) R v OAKES, John Noel (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant) R v BARNETT, Wayne Lindsay (applicant) R v BARNETT, Wayne Lindsay (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 105 of 2004 CA No 128 of 2004 CA No 152 of 2004 CA No 129 of 2004 CA No 120 of 2004 CA No 130 of 2004 SC No 3 of 2004 SC No 4 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction and Sentence Appeal against Conviction Sentence Application Sentence Appeals by A-G (Qld)
ORIGINATING COURT:	Supreme Court at Bundaberg
DELIVERED ON:	12 November 2004
DELIVERED AT:	Brisbane
HEARING DATE:	30 July 2004
JUDGES:	de Jersey CJ, Mackenzie and Mullins JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. In CA No 105 of 2004: (a) appeal against conviction dismissed (b) leave to appeal against sentence refused 2. In CA No 128 of 2004: (a) appeal against sentence allowed (b) the sentence of 12 years’ imprisonment imposed in the Supreme Court at Bundaberg on 2 April 2004 for the offence of attempted murder be set aside and, in lieu, the sentence of 15 years’ imprisonment be substituted (c) declare the conviction for attempted murder to be a conviction of a serious violent offence (d) affirm the other orders made in the Supreme Court at Bundaberg on 2 April 2004 3. In CA No 152 of 2004: (a) appeal against conviction dismissed 4. In CA No 129 of 2004: (a) appeal against sentence allowed (b) the sentence of six years’ imprisonment imposed in the Supreme Court at Bundaberg on 2 April 2004 for the offence of attempted murder be set aside and, in lieu, the sentence of nine years’ imprisonment be substituted (c) affirm the other orders made in the Supreme Court at Bundaberg on 2 April 2004 5. In CA No 120 of 2004: (a) leave to appeal against sentence refused 6. In CA No 130 of 2004: (a) appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – whether defendant suffered substantial miscarriage of justice as a result of not being tried separately from co-defendants – whether risk of prejudicial and improper use in case against defendant of one co-defendant’s statement given to the police which was admissible in the case against that co-defendant only – whether risk of prejudicial or improper use of statement was avoided by directions given to jury – whether any prejudice was compounded by aspects of conduct of trial including statements by prosecutor in address – no substantial miscarriage of justice CRIMINAL LAW – APPEAL AND NEW…