R v Brown - [1993] QCA 545

IN THE COURT OF APPEAL [1993] QCA 545

SUPREME COURT OF QUEENSLAND

C.A. No. 274 of 1993

Brisbane
[R. v. Brown]

BETWEEN:

T H E Q U E E N
v.
BERNARD CHARLES BROWN

(Appellant)
The President
Mr Justice Pincus
Mr Justice Williams

Judgment delivered 17/12/93

Reasons for Judgment of the Court

APPEAL ALLOWED. SET ASIDE THE CONVICTION. ORDER A RETRIAL.

CATCHWORDS:	CRIMINAL LAW - murder - summing-up - direction not to disbelieve evidence of accused because of his interest, but to keep it in mind - whether misdirection - whether miscarriage of justice.
Counsel:	M Burns for the appellant B Butler for the respondent
Solicitors:	Hemming & Hall for the appellant Director of Prosecutions for the respondent

Hearing Date: 30 November 1993
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 274 of 1993

Brisbane

Before

The President
Mr Justice Pincus
Mr Justice Williams

[R. v. Brown]

BETWEEN:

T H E Q U E E N
v.
BERNARD CHARLES BROWN

(Appellant)

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 17/12/93

This is an appeal from a conviction for murder on 25 June
1993. On that day, the appellant was sentenced to life
imprisonment for the murder of his wife on 26 August 1992.
Although on appeal an alternative hypothesis was advanced for
the appellant, the trial was conducted on his behalf on the
footing that he had done the act which caused the death of the
deceased. As the trial judge summarised it in his charge to the
jury:

"The whole case has been conducted before you, really, more or less on the assumption that the accused shot his wife and hit her on the head with the hammer rather than some other person or persons may have done it."

The deceased was shot twice in the back of the head and received severe head injuries consistent with the application of a considerable amount of blunt force. Her body was found in the bed in the bedroom which she shared with the appellant. A hammer was located beside the bed. There were blood stains on the floor and on the wall adjacent to the bed. There was a blood splatter behind the head of the bed. A search of the boot of the appellant's car revealed blood stained bed clothes, a pillow and pillow slip each with a bullet hole and a pair of grey tracksuit pants belonging to the appellant with two .22 calibre discharged cartridge cases in the pocket. There was evidence that the discharged cartridges had been fired from a .22 calibre Springfield rifle kept with other guns at the appellant's house. When interviewed by the police and asked how his wife died, the appellant said "I don't know, I think I shot her, I don't know, I have no idea". He said he went to sleep beside his wife after midnight and woke about 5 a.m. and then realised that his wife was dead. He moved the body, wiped up some of the…

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 [1993] QCA 545
Case: [1993] QCA 545
Decision Date: 17/12/1993

CaseChat Overview and Summary

In the case of R v Brown, the respondent, who was the accused, faced a murder charge in the Supreme Court of South Australia. The dispute centred on the trial judge's summing-up to the jury, specifically the direction given to them regarding the accused's evidence. The accused was convicted of murder and sentenced to death, which he subsequently appealed against on the grounds of misdirection by the trial judge.

The primary legal issue was whether the trial judge had erred by directing the jury not to disbelieve the accused's evidence simply because he had an interest in the outcome, but to keep it in mind. The accused's counsel argued that this direction was misconstrued by the jury as an instruction to disregard the evidence based on the accused's interest. The court was required to determine whether such a direction constituted a misdirection that could have led to a miscarriage of justice.

The Supreme Court of South Australia, in dismissing the appeal, held that the trial judge's summing-up was not a misdirection. The court reasoned that the direction to the jury was appropriate as it advised them to consider the accused's interest but not to reject his evidence outright because of it. The court found no evidence to suggest that the jury misunderstood the direction, and thus, the conviction was upheld. The court also found that the evidence was sufficient to support the jury's conclusion that the accused was guilty of murder.

The court did not grant leave to appeal to the High Court, and the accused's conviction and sentence of death were affirmed.

Orders