R v Armitage; R v Armitage - [2019] QCA 149

SUPREME COURT OF QUEENSLAND

CITATION:

R v Armitage; R v Armitage [2019] QCA 149

PARTIES:

In CA No 68 of 2017 and CA No 241 of 2017:

R
v
ARMITAGE, Stephen John
(appellant)

In CA No 81 of 2017 and CA No 226 of 2017:

R
v
ARMITAGE, Matthew Leslie
(appellant)

FILE NO/S:

CA No 68 of 2017
CA No 241 of 2017
CA No 81 of 2017
CA No 226 of 2017
SC No 973 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

In CA No 68 of 2017 and CA No 81 of 2017:
Supreme Court at Brisbane – Date of Convictions: 21 March 2017 (Jackson J)

In CA No 226 of 2017 and CA No 241 of 2017:
Supreme Court at Brisbane – Date of Convictions: 26 September 2017 (Jackson J)

DELIVERED ON:

2 August 2019

DELIVERED AT:

Brisbane

HEARING DATE:

29 November 2018; further submissions received from all parties on 25 June 2019

JUDGES:

Sofronoff P and McMurdo JA and Boddice J

ORDERS:

In CA No 68 of 2017:

1.   The appeal against the conviction on count 2 on the indictment be allowed, the conviction on that count be quashed, and a retrial ordered on that count.

2.   The appeal against the conviction on count 3 on the indictment be dismissed.

In CA No 81 of 2017:

1.   The appeal against the conviction on count 2 on the indictment be allowed, the conviction on that count be quashed, and a retrial ordered on that count.

2.   The appeal against the conviction on count 3 on the indictment be dismissed.

In CA No 226 of 2017:

The appeal against the conviction on the indictment be allowed, the conviction be quashed, a verdict of guilty of manslaughter be substituted, and the matter be remitted to the trial division for the appellant to be sentenced for that offence.

In CA No 241 of 2017:

The appeal against the conviction on the indictment be allowed, the conviction be quashed, a verdict of guilty of manslaughter be substituted, and the matter be remitted to the trial division for the appellant to be sentenced for that offence.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where the appellants were convicted of murder, torture and interference with the deceased’s corpse – where the deceased disappeared after stealing drugs – where the deceased’s burnt and partially buried remains were later found not far from the appellants’ property – where an unidentified man was said to have been held and tortured at the appellants’ property in the period between the deceased’s disappearance and the finding of his remains – where the prosecution case was wholly circumstantial – where the prosecution alleged that the appellants were each guilty of murder because they caused the death of the deceased with the requisite intent, aided another in the murder of the deceased, or formed a common intention to prosecute the unlawful…

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.

Keep reading for free

Create a free CaseChat account to read R v Armitage; R v Armitage and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] QCA 149
Decision Date: 2 August 2019

CaseChat Overview and Summary

The case of R v Armitage involved two appellants, who were convicted of murder, torture and interference with the deceased’s corpse. The deceased, Mr Barker, disappeared after stealing drugs, and his burnt and partially buried remains were found not far from the appellants’ property. The prosecution case was wholly circumstantial, and the appellants argued that there was insufficient evidence to prove that the deceased was killed with the required intent. The appellants also challenged their convictions for the offence of torture, on the ground that the judge did not direct the jury that they could convict only if all of the jury reached that conclusion on the basis of the same conduct.

The legal issues the court was required to decide included whether it was open to the jury to find that the unidentified man was the deceased, whether there was sufficient evidence to prove that the deceased was killed by a bodily injury inflicted with intent to commit grievous bodily harm or to kill, to the exclusion of all other reasonable explanations, and whether it was open to the jury to find that the deceased was killed by an injury inflicted upon him by the appellants, another aided by the appellants, or another in the course of prosecuting an unlawful common purpose with the appellants. The court also had to consider whether the verdicts of murder should be substituted for verdicts of manslaughter, and whether the trial judge misdirected the jury by failing to direct that the appellants could be found guilty of manslaughter, rather than murder, on the basis that the appellants aided another in the killing of the deceased.

The court found that there was insufficient evidence to prove that the deceased was killed with the required intent, and that the verdicts of murder should be substituted for verdicts of manslaughter. The court also found that the trial judge misdirected the jury by failing to direct that the appellants could be found guilty of manslaughter, rather than murder, on the basis that the appellants aided another in the killing of the deceased. The court allowed the appeal against the conviction on count 2 on the indictment, quashed the conviction on that count, and ordered a retrial on that count. The court also allowed the appeal against the conviction on the indictment, quashed the conviction, substituted a verdict of guilty of manslaughter, and remitted the matter to the trial division for the appellant to be sentenced for that offence.

In summary, the court found that there was insufficient evidence to prove that the appellants were guilty of murder, and that the verdicts of murder should be substituted for verdicts of manslaughter. The court also found that the trial judge misdirected the jury by failing to direct that the appellants could be found guilty of manslaughter, rather than murder, on the basis that the appellants aided another in the killing of the deceased. The court allowed the appeal against the conviction on count 2 on the indictment, quashed the conviction on that count, and ordered a retrial on that count. The court also allowed the appeal against the conviction on the indictment, quashed the conviction, substituted a verdict of guilty of manslaughter, and remitted the matter to the trial division for the appellant to be sentenced for that offence.

Orders

Orders of the court

In CA No 68 of 2017:

1. The appeal against the conviction on count 2 on the indictment be allowed, the conviction on that count be quashed, and a retrial ordered on that count.

2. The appeal against the conviction on count 3 on the indictment be dismissed.

In CA No 81 of 2017:

1. The appeal against the conviction on count 2 on the indictment be allowed, the conviction on that count be quashed, and a retrial ordered on that count.

2. The appeal against the conviction on count 3 on the indictment be dismissed.

In CA No 226 of 2017:

The appeal against the conviction on the indictment be allowed, the conviction be quashed, a verdict of guilty of manslaughter be substituted, and the matter be remitted to the trial division for the appellant to be sentenced for that offence.

In CA No 241 of 2017:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

They challenge their convictions for the offence of torture, upon the ground that the judge did not direct the jury that they could convict only if all of the jury reached that conclusion on the basis of the same conduct. And they argue that the jury’s verdict on the third charge, that of interfering with the corpse, was unreasonable.The evidence I will discuss first the evidence given at the second trial. Some facts were the subject of formal admissions under s 644 of the Criminal Code (“the Code”) including events leading up to the disappearance of Mr Barker in December 2013.Events at the Gold Coast Mr Barker was a heavy user of methylamphetamine and, by late 2012, he was taking the drug six to eight times a day. By then, he had separated from his former partner, Lauren Jones, but they still spoke to each other every day. When she saw him in mid-2013, he looked sick and had lost 15-20 kilograms in weight. In late 2013, he told her that he was also manufacturing drugs. In October 2013, Mr Barker, Ms Jones and another woman went to a hotel room in Broadbeach. It was a particular room which Ms Jones had booked at the request of Mr Barker, who had told her that there was “around $80,000 worth of ice that had been hidden” there. Mr Barker retrieved a tin from behind an air conditioning unit on the balcony, which he opened revealing a clip seal bag with a substance that had the appearance of the drug ice. Ms Jones last spoke with Mr Barker on 9 December 2013. On that evening, a white Toyota LandCruiser wagon, with registration 817-SBZ, was observed outside a house at 2 Montrose Court, Benowa Waters. That was a car used in the relevant period by William Dean. A credit card in the name of the appellant, Stephen Armitage, was used at Coomera on 10 December 2013. Stephen Armitage had had an operation on his back at a Brisbane hospital in November 2013. He attended a follow-up appointment with a doctor in Brisbane on 11 December 2013 and a further appointment in Brisbane a week later. There was evidence from a woman named Amber Denning, who was using ice which she would source from Stephen Armitage at his property. Here she met William Dean. In late 2013, she travelled with Stephen Armitage and Dean to the Gold Coast, where they met Mr Murphy at the Benowa Tavern. On the same day, she went with them to the property at 2 Montrose Court, Benowa Waters. This was Mr Murphy’s house. It was also admitted that during the relevant period, certain telephone services were used by certain persons, including in some cases the appellants. A table of records of calls between those services was tendered. The fact of a call from one person to another was thereby proved, but not the content of the conversation. On the morning of 9 December 2013, Stephen Armitage called William Dean. That afternoon, Mr Barker called Mr Murphy. On that afternoon and evening, there were calls between Stephen Armitage and Mr Dean, and between Stephen and Matthew Armitage. There were further calls on the following morning, by Stephen Armitage to Mr Murphy and then Mr Dean. There were calls that afternoon by Stephen Armitage to Matthew Armitage and again to Mr Dean.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Armitage; R v Armitage [2019] QCA 149
PARTIES:	In CA No 68 of 2017 and CA No 241 of 2017: R v ARMITAGE, Stephen John (appellant) In CA No 81 of 2017 and CA No 226 of 2017: R v ARMITAGE, Matthew Leslie (appellant)
FILE NO/S:	CA No 68 of 2017 CA No 241 of 2017 CA No 81 of 2017 CA No 226 of 2017 SC No 973 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	In CA No 68 of 2017 and CA No 81 of 2017: Supreme Court at Brisbane – Date of Convictions: 21 March 2017 (Jackson J) In CA No 226 of 2017 and CA No 241 of 2017: Supreme Court at Brisbane – Date of Convictions: 26 September 2017 (Jackson J)
DELIVERED ON:	2 August 2019
DELIVERED AT:	Brisbane
HEARING DATE:	29 November 2018; further submissions received from all parties on 25 June 2019
JUDGES:	Sofronoff P and McMurdo JA and Boddice J
ORDERS:	In CA No 68 of 2017: 1. The appeal against the conviction on count 2 on the indictment be allowed, the conviction on that count be quashed, and a retrial ordered on that count. 2. The appeal against the conviction on count 3 on the indictment be dismissed. In CA No 81 of 2017: 1. The appeal against the conviction on count 2 on the indictment be allowed, the conviction on that count be quashed, and a retrial ordered on that count. 2. The appeal against the conviction on count 3 on the indictment be dismissed. In CA No 226 of 2017: The appeal against the conviction on the indictment be allowed, the conviction be quashed, a verdict of guilty of manslaughter be substituted, and the matter be remitted to the trial division for the appellant to be sentenced for that offence. In CA No 241 of 2017: The appeal against the conviction on the indictment be allowed, the conviction be quashed, a verdict of guilty of manslaughter be substituted, and the matter be remitted to the trial division for the appellant to be sentenced for that offence.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where the appellants were convicted of murder, torture and interference with the deceased’s corpse – where the deceased disappeared after stealing drugs – where the deceased’s burnt and partially buried remains were later found not far from the appellants’ property – where an unidentified man was said to have been held and tortured at the appellants’ property in the period between the deceased’s disappearance and the finding of his remains – where the prosecution case was wholly circumstantial – where the prosecution alleged that the appellants were each guilty of murder because they caused the death of the deceased with the requisite intent, aided another in the murder of the deceased, or formed a common intention to prosecute the unlawful…