Wright v The Queen

[2015] QSC 178

SUPREME COURT OF QUEENSLAND

CITATION:

Wright v R [2015] QSC 178

PARTIES:

ANTHONY DESMOND WRIGHT
(applicant)
v

THE QUEEN
(respondent)

FILE NO/S:

SC No 4 of 2014

DIVISION:

Criminal

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Toowoomba

DELIVERED EX TEMPORE ON:

1 May 2015

DELIVERED AT:

Toowoomba

HEARING DATE:

1 May 2015

JUDGE:

Peter Lyons J

ORDER:

It is ruled that the applicant desisted of his own motion from the further prosecution of his intention to kill the victim

CATCHWORDS:

CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – NATURE AND CIRCUMSTANCES OF OFFENCE – CIRCUMSTANCES OF OFFENCE – where the applicant was convicted of attempted murder – where the applicant hit the victim with a hammer three to four times – where the applicant submitted that he stopped the assault when the victim stopped screaming and he was able to focus – whether there was any intervention which had any effect on the applicant’s conduct and on the cessation of the assault – whether the applicant desisted of his own motion from the further prosecution of his intention to kill the victim

Criminal Code 1899 (Qld), s 538

Evidence Act 1977 (Qld), s 132C, s 136

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

COUNSEL:

R Davies for the applicant

D Jones for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant

Director of Public Prosecutions (Queensland) for the respondent

1. In the course of the sentence proceedings in this case, the defendant’s counsel has applied for a finding under section 538 of the Criminal Code 1899 (Qld) (Code), that the defendant desisted of his own motion from the further prosecution of his relevant intention without the fulfilment of that intention being prevented by circumstances independent of the defendant’s will and, as a consequence, a finding in terms of the maximum penalty to which the defendant would be liable.

2. The evidence relied upon was the evidence given at the trial, together with some brief oral evidence of the defendant himself. 

3. The section has some unusual features.  The language would appear to cast the onus upon the defendant 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..

4. I was also referred to s 132C of the Evidence Act 1977 (Qld), where subsection (3) provides that a sentencing judge may act on an allegation if the judge is satisfied, on the balance of probabilities, that the allegation is true. Any doubt about the applicability of that section to proceedings after a jury trial is removed by s 136 of the same Act. It seems to me, therefore, that the issue in this part of the proceeding is whether the defendant has established, on the balance of probabilities, that he desisted of his own motion from the further prosecution of what…