Court of Appeal (Qld)|2001-07-20|Before: McMurdo P, Moynihan J and Dutney JSeparate reasons for judgment of each, member of the Court, Moynihan J and Dutney J concurring as to the orders made, McMurdo P dissenting
McMurdo P, Moynihan J and Dutney JSeparate reasons for judgment of each, member of the Court, Moynihan J and Dutney J concurring as to the orders made, McMurdo P dissenting
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – PARTICULAR GROUNDS –
MISDIRECTION AND
NON-DIRECTION – GENERAL MATTERS – JOINT TRIAL OF SEVERAL PERSONS
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– APPEAL AND NEW TRIAL – PARTICULAR GROUNDS –MISDIRECTION ANDNON-DIRECTION – GENERAL MATTERS – JOINT TRIAL OF SEVERAL PERSONS– where application for separatetrials rejected – where statementsmade by co-accused highly prejudicial to accused – where evidence inquestion is discreetand appropriate direction given – where assumptionthat jury follows directions – no miscarriage of justice.CRIMINALLAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY –DEFENCE MATTERS – INTOXICATION –where accused on trial for murder– whether misdirection - where trial judge phrased direction in terms ofwhether the accusedhad the capacity to form the requisite intent asopposed to whether they had formed the intent - s 28 Criminal Code– no misdirection when read in context of summing up.CRIMINAL LAW– GENERAL MATTERS – ANCILLIRY LIABILITY – COMPLICITY –AIDER AND ABETTOR – whether failure
to give direction that intoxication or
stupefaction are matters which could be taken into account in deciding whether
an aider under
s 7 Criminal Code had the necessary awareness of the
committers intention to kill – where the effect of intoxication on
awareness is a matter
for common sense experience and within the ordinary
knowledge of the jury – where no specific direction is
required.CRIMINAL LAW – EVIDENCE – CONFESSIONS AND
ADMISSIONS – GENERALLY – where lies by accused – whether
adequate
direction given as to the use to be made of the lies with respect to a
consciousness of guilt – where adequate direction given.CRIMINAL
LAW – EVIDENCE – CONFESSIONS AND ADMISSIONS – GENERALLY
– where lies by accused – whether no
particular standard of proof
applied to a finding that a lie was evidence of a consciousness of guilt
CRIMINAL LAW – EVIDENCE – CONFESSIONS AND ADMISSIONS –
GENERALLY – where misdirection with respect to suggestion
that the accused
bore the onus of establishing an innocent explanation for prior lies (false
statements) – application of the
proviso in the context of an otherwise
overwhelming case against the accused.CRIMINAL LAW – PARTICULAR
OFFENCES – OFFENCES AGAINST THE PERSON – HOMICIDE – MURDER
– PRACTICE AND
PROCEDURE – ALTERNATIVE VERDICTS – DIRECTION TO
JURY – WHERE EVIDENCE TO SUPPORT VERDICT OF MANSLAUGHTER –
whether
failure to issue direction that jury could convict on the alternate count of
manslaughter if unsatisfied that the aider was
aware of the committers intention
to do grievous bodily harm amount to a miscarriage of justice – where not
specifically identifying
one route that the jury may arrive at a lesser verdict
does not amount to a miscarriage in the circumstances.CRIMINAL LAW
– APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW
TRIAL – PARTICULAR GROUNDS –
UNREASONABLE OR INSUPPORTABLE VERDICT
– WHERE EVIDENCE CIRCUMSTANTIAL – whether verdict unsafe –
where sufficient
circumstantial evidence to sustain verdict.Criminal
Code s 7, s 28(3) Brennan v The Queen (1998) 101 ACrimR 214,
consideredR v Davidson [2000] QCA 39
CA No 369 of 1999, 28 July
2000, consideredR v Edwards [1993] HCA 63
(1993) 178 CLR 193, consideredR v
Gilbert (2000) 109 ACrimR 580, consideredR v Hughes (1994) 76
ACrimR 177, consideredR v Kusu [1981] QdR 136, consideredR v
181 CLR 41, consideredWilde v The Queen [1988] HCA 6
(1987-88) 164 CLR 365,
considered
Judgment (19 paragraphs)
[1]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - JOINT TRIAL OF SEVERAL PERSONS - where application for separate trials rejected - where statements made by co-accused highly prejudicial to accused - where evidence in question is discreet and appropriate direction given - where assumption that jury follows directions - no miscarriage of justice.
[2]
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INTOXICATION - where accused on trial for murder - whether misdirection - where trial judge phrased direction in terms of whether the accused had the capacity to form the requisite intent as opposed to whether they had formed the intent - s 28 Criminal Code - no misdirection when read in context of summing up.
[3]
CRIMINAL LAW - GENERAL MATTERS - ANCILLIRY LIABILITY - COMPLICITY - AIDER AND ABETTOR - whether failure to give direction that intoxication or stupefaction are matters which could be taken into account in deciding whether an aider under s 7 Criminal Code had the necessary awareness of the committers intention to kill - where the effect of intoxication on awareness is a matter for common sense experience and within the ordinary knowledge of the jury - where no specific direction is required.
[4]
CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - GENERALLY - where lies by accused - whether adequate direction given as to the use to be made of the lies with respect to a consciousness of guilt - where adequate direction given.
[5]
CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - GENERALLY - where lies by accused - whether no particular standard of proof applied to a finding that a lie was evidence of a consciousness of guilt
[6]
CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - GENERALLY - where misdirection with respect to suggestion that the accused bore the onus of establishing an innocent explanation for prior lies (false statements) - application of the proviso in the context of an otherwise overwhelming case against the accused.
[7]
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - PRACTICE AND PROCEDURE - ALTERNATIVE VERDICTS - DIRECTION TO JURY - WHERE EVIDENCE TO SUPPORT VERDICT OF MANSLAUGHTER - whether failure to issue direction that jury could convict on the alternate count of manslaughter if unsatisfied that the aider was aware of the committers intention to do grievous bodily harm amount to a miscarriage of justice - where not specifically identifying one route that the jury may arrive at a lesser verdict does not amount to a miscarriage in the circumstances.
[8]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE EVIDENCE CIRCUMSTANTIAL - whether verdict unsafe - where sufficient circumstantial evidence to sustain verdict.