R v Brown - [2007] QCA 161

SUPREME COURT OF QUEENSLAND

CITATION:

R v Brown [2007] QCA 161

PARTIES:

R
v
BROWN, Patrick Francis
(appellant)

FILE NO/S:

CA No 310 of 2006
SC No 888 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

18 May 2007

DELIVERED AT:

Brisbane

HEARING DATE:

2 February 2007

JUDGES:

McMurdo P, Jerrard JA and Holmes JA
Separate reasons for judgment of 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 – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL – MISDIRECTION AND NON-DIRECTION – GENERALLY – where the appellant "aided" but was not the principal offender – whether the trial judge erred in failing to direct the jury about the inter-relationship between s 23 and s 7(1)(c) Criminal Code 1899 (Qld)

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL – MISDIRECTION AND NON-DIRECTION – GENERALLY – whether the trial judge erred in directing the jury with regard to "probable consequence" under s 8 Criminal Code 1899 (Qld) – where "probable consequence" was referred to as a consequence that "might" well happen

Criminal Code 1899 (Qld), s 7(1)(c), s 8, s 23, s 668E(1A)
Penalties and Sentences Act 1992 (Qld), Pt 9A

Darkan v The Queen (2006) 80 ALJR 1250; 163 A Crim R 80, considered
Kaporonovski v The Queen (1973) 133 CLR 209, considered
Brennan v The King [1936] 55 CLR 253, cited
R v Da Costa[2005] QCA 385, CA No 142 of 2005, 14 October 2005, considered
Giorgianni v The Queen (1985) 156 CLR 473, cited
R v Jeffrey [1997] QCA 460; [2003] 2 Qd R 306, considered
R v Lowrie and Ross [2000] 2 Qd R 529, considered
R v Solomon [1959] Qd R 123, considered
Stevens v The Queen (2005) 80 ALJR 91; 156 A Crim R 487, distinguished

COUNSEL:

J R Hunter for the appellant
M J Copley for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

McMURDO P: The appellant, Patrick Francis Brown, pleaded not guilty on 16 October 2006 to murdering David Charles Meneely (count 1) and to robbing him with personal violence in company while armed with a dangerous weapon (a rifle), with an offensive instrument (a hammer), and with an offensive instrument (a porcelain figurine) (count 2). Both offences were said to have occurred on 13 August 2003. After a six day trial a jury found him not guilty of murder but guilty of manslaughter and of robbery in company with personal violence, but not guilty of the circumstances of aggravation alleging that he was armed with a rifle, a hammer and…

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 Brown

Details

AGLC: R v Brown [2007] QCA 161
Case: [2007] QCA 161
Decision Date: 18 May 2007

CaseChat Overview and Summary

The case of R v Brown involved an appeal against the appellant's conviction. The appellant was found to have aided in the commission of an offence but was not the principal offender. The appeal was based on the argument that the trial judge had erred in failing to direct the jury about the inter-relationship between sections 23 and 7(1)(c) of the Criminal Code 1899 (Qld). The appellant further argued that the trial judge had misdirected the jury with regard to the "probable consequence" under section 8 of the Criminal Code 1899 (Qld), by referring to a consequence that "might" well happen.

The legal issues before the court were whether the trial judge had erred in not directing the jury about the relationship between sections 23 and 7(1)(c) of the Criminal Code 1899 (Qld), and whether the trial judge had misdirected the jury with regard to the "probable consequence" under section 8 of the Criminal Code 1899 (Qld). The court considered the relevant provisions of the Criminal Code 1899 (Qld) and the evidence presented at the trial to determine whether there had been any error on the part of the trial judge. The court also considered whether any such error had resulted in a miscarriage of justice.

The court held that the trial judge had not erred in failing to direct the jury about the relationship between sections 23 and 7(1)(c) of the Criminal Code 1899 (Qld). The court held that the trial judge's direction to the jury about "probable consequence" under section 8 of the Criminal Code 1899 (Qld) was not an error that resulted in a miscarriage of justice. The court held that there had been no miscarriage of justice in the trial, and dismissed 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 Brown [2007] QCA 161
PARTIES:	R v BROWN, Patrick Francis (appellant)
FILE NO/S:	CA No 310 of 2006 SC No 888 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	18 May 2007
DELIVERED AT:	Brisbane
HEARING DATE:	2 February 2007
JUDGES:	McMurdo P, Jerrard JA and Holmes JA Separate reasons for judgment of 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 – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL – MISDIRECTION AND NON-DIRECTION – GENERALLY – where the appellant "aided" but was not the principal offender – whether the trial judge erred in failing to direct the jury about the inter-relationship between s 23 and s 7(1)(c) Criminal Code 1899 (Qld) CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL – MISDIRECTION AND NON-DIRECTION – GENERALLY – whether the trial judge erred in directing the jury with regard to "probable consequence" under s 8 Criminal Code 1899 (Qld) – where "probable consequence" was referred to as a consequence that "might" well happen Criminal Code 1899 (Qld), s 7(1)(c), s 8, s 23, s 668E(1A) Penalties and Sentences Act 1992 (Qld), Pt 9A Darkan v The Queen (2006) 80 ALJR 1250; 163 A Crim R 80, considered Kaporonovski v The Queen (1973) 133 CLR 209, considered Brennan v The King [1936] 55 CLR 253, cited R v Da Costa[2005] QCA 385, CA No 142 of 2005, 14 October 2005, considered Giorgianni v The Queen (1985) 156 CLR 473, cited R v Jeffrey [1997] QCA 460; [2003] 2 Qd R 306, considered R v Lowrie and Ross [2000] 2 Qd R 529, considered R v Solomon [1959] Qd R 123, considered Stevens v The Queen (2005) 80 ALJR 91; 156 A Crim R 487, distinguished
COUNSEL:	J R Hunter for the appellant M J Copley for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent