R v Brien and Paterson - [1998] QCA 70

IN THE COURT OF APPEAL	[1998] QCA 070
SUPREME COURT OF QUEENSLAND

C.A. No. 471 of 1997. C.A. No. 478 of 1997.

Brisbane

[R v. Brien & Paterson]

T H E Q U E E N

GEOFFREY STANLEY BRIEN
and
KERRY WARREN PATERSON

Appellants

___________________________________________________________________________

Fitzgerald P.
Pincus J.A.
Williams J.

___________________________________________________________________________

Judgment delivered 28 April 1998

Separate Reasons for Judgment of each member of the Court, all concurring as to the orders
made.

___________________________________________________________________________

APPEALS AGAINST CONVICTIONS ALLOWED. CONVICTIONS QUASHED.
ORDER THAT THE APPELLANTS BE RETRIED FOR MURDER.

___________________________________________________________________________

CATCHWORDS: CRIMINAL LAW - appeal against conviction - murder - combined
application of ss. 8 and 302(1)(b) of the Code - meaning of the
"nature" of the offence in s. 8 - application of Barlow - whether
appellants should be retried for murder.

Criminal Code ss. 8, 302 (1)(b)

Barlow (1997) 188 C.L.R. 1

Counsel:	Mr S Hamlyn-Harris for the appellant Brien. Mr A Rafter for the appellant Paterson. Mr P Rutledge for the respondent.
Solicitors:	Legal Aid Queensland for the appellant Brien. Legal Aid Queensland for the appellant Paterson. Director of Public Prosecutions (Queensland) for the respondent.
Hearing date:	5 March 1998.

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 28 April 1998

Nicholas Michael Paul Kummer was unlawfully killed on the night of 17 December 1993.[1] The appellants and two other men, William James Wood and Barry Eric Petersen, were present when Kummer was killed. All four men were charged with murdering Kummer. Initially, Wood and Paterson were tried together; Paterson was convicted of murder and Wood was convicted of manslaughter. When Brien and Petersen were later tried together, Brien was convicted of murder and Petersen was convicted of manslaughter. Appeals were allowed.[2] Wood was acquitted, and re-trials were ordered for Paterson, Brien and Petersen. Petersen, who could not be re-tried for murder,[3] pleaded guilty to manslaughter and was sentenced on 12 December 1997.[4]

[1] Section 10A was inserted into the Criminal Code after the date of these alleged offences.

[2] (1996) 87 A.Crim.R. 346.

[3] Code, s. 17.

[4] Petersen’s application for leave to appeal against his sentence was allowed on 21 April 1998.

Meanwhile, following their retrial, Paterson and Brien were each convicted of murder [5]
on 22 November 1997. Each has appealed against his conviction.
While a detailed analysis of the evidence against each appellant is not required, it is
necessary to note the essential elements, and limited nature, of the prosecution case.
Although Paterson fired two bullets from a .22 rifle through a window of Kummer’s
residence, Kummer was killed by bullets and/or shotgun pellets fired by Petersen and/or
Brien.[6] The prosecution could not prove beyond reasonable doubt who fired the fatal
shot or shots.[7] It was accepted by prosecution and defence that, if satisfied beyond
reasonable doubt that Kummer was otherwise killed in the circumstances described in
the prosecution evidence, the jury would decide the charges against Paterson and Brien
on the basis that Petersen might have fired the fatal…

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 Brien and Paterson

Details

AGLC: R v Brien and Paterson [1998] QCA 70
Case: [1998] QCA 70
Decision Date: 28/04/1998

CaseChat Overview and Summary

The Court of Appeal heard appeals against convictions by Geoffrey Stanley Brien and Kerry Warren Paterson, who were convicted of murder in separate trials. The appeals were allowed, and the convictions quashed, with orders for retrial. The central issue in the appeal was the proper application of sections 8 and 302(1)(b) of the Criminal Code in cases of unlawful killings where death is caused by an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life. The court considered the nature of the offence in s. 8, and whether it was necessary for the jury to find that the act was of such a nature as to be likely to endanger human life, as required by s. 302(1)(b). The court concluded that the trial judge's directions to the jury on the nature of the offence were inadequate and misstated the law, leading to a substantial miscarriage of justice. The appeals were allowed, the convictions quashed, and the appellants ordered to be retried for murder, as there was no risk that they would be convicted of an offence of which they were innocent. The court also noted that, while it was desirable to consider the prosecution's inability to prove who fired the shot that killed the victim, it was not necessary to do so at that point.

Orders