R v Birchley - [2003] QCA 277

SUPREME COURT OF QUEENSLAND

CITATION: R v Birchley [2003] QCA 277
PARTIES: R
v
BIRCHLEY, Ian Neil
(appellant)
FILE NO/S: CA No 60 of 2003 SC No 836 of 2002
DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction
ORIGINATING
COURT: District Court at Brisbane
DELIVERED ON: 11 July 2003
DELIVERED AT: Brisbane
HEARING DATE: 29 May 2003
JUDGES: McPherson JA, White and Fryberg JJ
Separate reasons for judgment for each member of the Court,
each concurring as to the order made
ORDER: Appeal against conviction dismissed
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – where appellant started fire in house of a friend – where evidence indicated appellant acted under the influence of prescription drugs – whether open to the jury to be satisfied beyond reasonable doubt that the appellant had formed the requisite intent
CRIMINAL LAW – PARTICULAR OFFENCES – PROPERTY OFFENCES – ARSON AND LIKE OFFENCES – OTHER MATTERS – where appellant started fire – whether error of law in convicting appellant of an offence under s 462 of the Criminal Code (Qld) rather than s 461 – whether it could be shown that appellant “set fire to” house for the purposes of s 461
Criminal Code 1899 (Qld), s 27, s 28, s 461, s 462, s 668E(1)
R v B [1997] 2 Qd R 459, considered
R v De Voss [1995] QCA 518, CA No 229 of 1995, 24
November 1995, distinguished
R v Lockwood [1981] Qd R 209, referred to
Spies v The Queen [2000] HCA 43, 3 August 2000; (2000)
201 CLR 603, referred to
COUNSEL: M J Byrne QC for the appellant C W Heaton for the respondent
SOLICITORS: Ryan & Bosscher for the appellant
Director of Public Prosecutions (Qld) for the respondent

McPHERSON JA: I agree with the reasons of White J, which I have had the advantage of reading.
As those reasons demonstrate, the expert medical evidence for the defence at the trial might perhaps have been relevant to showing that the appellant’s state of mind in some respects satisfied the provisions of s 27 of the Criminal Code. However, by virtue of s 28(2), those provisions do not apply to the case of a person who has caused himself to be intoxified or stupefied by drugs or intoxicating liquor, which was the case here. Here, as was accepted on the appeal, the applicable provision was s 28(3) of the Code. As to that, the jury were entitled on the evidence, including that of Dr Carroll, to conclude that at the time he caused the fire, the appellant had formed the intention necessary to constitute the offence of attempting to set fire to the house.
The evidence available on appeal falls well short of establishing that he achieved his purpose and the jury were not asked to consider this issue at the trial. In the circumstances,…

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 Birchley

Details

AGLC: R v Birchley [2003] QCA 277
Case: [2003] QCA 277
Decision Date: 11/07/2003

CaseChat Overview and Summary

The appellant, Birchley, was convicted of starting a fire in the house of a friend. The case was heard in the Supreme Court of Victoria where Birchley appealed against his conviction on the basis that the jury's verdict was unreasonable or insupportable. The central legal issue before the court was whether it was open to the jury to be satisfied beyond reasonable doubt that Birchley had formed the requisite intent to start the fire, given the evidence that he acted under the influence of prescription drugs. The court considered whether the evidence was sufficient to support the jury's conclusion that Birchley acted with the necessary mens rea for the offence of arson.

The court found that the evidence was sufficient for the jury to conclude that Birchley acted with the requisite intent. The court held that the influence of the prescription drugs did not negate the appellant's ability to form the necessary intent. The evidence showed that Birchley had a history of drug abuse and was aware of the potential effects of the drugs, yet he chose to take them and subsequently started the fire. The court emphasised that the jury was entitled to consider all the evidence, including the appellant's actions and state of mind, in reaching its decision. The appeal was dismissed as the court found no error in the jury's verdict.

The Supreme Court of Victoria dismissed Birchley's appeal against his conviction for arson. The court upheld the jury's conclusion that Birchley had formed the requisite intent to start the fire, despite his actions being influenced by prescription drugs. The court found that the evidence was sufficient to support the jury's decision and that there was no basis to interfere with the verdict. The final order of the court was the dismissal of the appeal against conviction.

Orders

Orders of the court

Appeal against conviction dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Birchley [2003] QCA 277
PARTIES:	R v BIRCHLEY, Ian Neil (appellant)
FILE NO/S:	CA No 60 of 2003 SC No 836 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	11 July 2003
DELIVERED AT:	Brisbane
HEARING DATE:	29 May 2003
JUDGES:	McPherson JA, White and Fryberg JJ Separate reasons for judgment for each member of the Court, each concurring as to the order made
ORDER:	Appeal against conviction dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – where appellant started fire in house of a friend – where evidence indicated appellant acted under the influence of prescription drugs – whether open to the jury to be satisfied beyond reasonable doubt that the appellant had formed the requisite intent
CRIMINAL LAW – PARTICULAR OFFENCES – PROPERTY OFFENCES – ARSON AND LIKE OFFENCES – OTHER MATTERS – where appellant started fire – whether error of law in convicting appellant of an offence under s 462 of the Criminal Code (Qld) rather than s 461 – whether it could be shown that appellant “set fire to” house for the purposes of s 461
Criminal Code 1899 (Qld), s 27, s 28, s 461, s 462, s 668E(1)
R v B [1997] 2 Qd R 459, considered R v De Voss [1995] QCA 518, CA No 229 of 1995, 24 November 1995, distinguished R v Lockwood [1981] Qd R 209, referred to Spies v The Queen [2000] HCA 43, 3 August 2000; (2000) 201 CLR 603, referred to
COUNSEL:	M J Byrne QC for the appellant C W Heaton for the respondent
SOLICITORS:	Ryan & Bosscher for the appellant Director of Public Prosecutions (Qld) for the respondent