R v Allen - [1993] QCA 546

IN THE COURT OF APPEAL [1993] QCA 546

SUPREME COURT OF QUEENSLAND

C.A. No. 376 of 1993

Brisbane
[R. v. Allen]

BETWEEN:

T H E Q U E E N
v.
TIMOTHY FRANCIS ALLEN

(Appellant)
The President
Mr Justice Pincus
Mr Justice Williams

Judgment delivered 17/12/93

Separate reasons for judgment by each member of the Court. All agreeing in the order.

APPEAL DISMISSED.

CATCHWORDS:	CRIMINAL LAW - Appeal and new trial - whether sufficient evidence of a violent common unlawful purpose to leave ss. 8 and 302(2) Criminal Code to the jury - whether judge erred in directing jury to have regard to accused's interest in weighing his evidence.
Counsel:	S Herbert QC for the appellant B Butler for the respondent
Solicitors:	Legal Aid Office for the appellant Director of Prosecutions for the respondent

Hearing Date: 10 December 1993
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 376 of 1993

Brisbane

Before

The President
Mr Justice Pincus
Mr Justice Williams

[R. v. Allen]

BETWEEN:

T H E Q U E E N
v.
TIMOTHY FRANCIS ALLEN

(Appellant)

REASONS FOR JUDGMENT - THE PRESIDENT

Judgment delivered 17/12/93

The appellant has been convicted on three occasions of the murder of a taxi-driver, Robin John Miller, on 11 August 1990. Two previous appeals have been successful on the basis of misdirections to the jury and a new trial has been ordered. Following his third trial, the appellant was again convicted on 20 September 1993 and sentenced to life imprisonment. This is an appeal against that conviction.

On the night of the killing, the appellant and another who has been separately convicted of the murder, one Bradford, had been drinking for some hours at premises in Fortitude Valley. They engaged the deceased's taxi to drive them to their destination although they had no money to pay the fare. The appellant, who gave evidence at his trial, admitted that he and Bradford intended to evade payment of the fare. Of course, it does not follow that the jury was obliged to accept that that was the only offence intended. The evidence was sufficient to allow the jury to conclude that the appellant and Bradford had a common intention to rob the deceased and/or to kill him or cause him grievous bodily harm.

Prior to entering the taxi, the appellant saw Bradford pick up a broken piece of glass and put it in his jeans. According to the appellant, Bradford told him that he had picked up the glass "... just for fun." Bradford, who is left-handed, sat in the front passenger seat next to the deceased. The appellant, who is right-handed, sat behind them in the rear seat.

The deceased died from blood loss caused by multiple
lacerations and puncture wounds in and around his face and head.
The principal wounds were to his neck and throat. The
pathologist who conducted the post-mortem expressed the opinion
that it was probable that a sharp instrument had been drawn
across the deceased's throat from…

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 Allen

Details

AGLC: R v Allen [1993] QCA 546
Case: [1993] QCA 546
Decision Date: 17/12/1993

CaseChat Overview and Summary

In the case of R v Allen, the appellant was convicted of murder in the Supreme Court of Victoria. The dispute involved the sufficiency of the evidence presented to the jury, particularly concerning whether there was a common unlawful purpose that was violent in nature, as required by sections 8 and 302(2) of the Criminal Code. Additionally, the case questioned whether the trial judge erred in instructing the jury to consider the accused's interest when weighing his evidence.

The primary legal issues addressed by the court were whether the evidence presented was adequate to establish the existence of a violent common unlawful purpose and whether the trial judge's direction to the jury regarding the accused's interest in his evidence was appropriate. The court needed to determine if the evidence was sufficient to justify leaving the question of a violent common purpose to the jury and if the judge's direction was prejudicial or misdirected.

The court found that there was indeed sufficient evidence to leave the question of a violent common unlawful purpose to the jury. It held that the evidence presented was adequate to support a finding of such a purpose. Regarding the judge's direction to the jury, the court concluded that while the direction could be seen as an error, it did not amount to a miscarriage of justice. The court determined that the direction did not prejudice the appellant and was not such that it would lead the jury to convict the appellant based on an improper ground.

The final orders of the court were to affirm the conviction of the appellant, finding that any error in the trial judge's direction did not affect the outcome of the case. The appeal was dismissed, and the conviction was upheld.

Orders