R v Carne - [1997] QCA 176

IN THE COURT OF APPEAL	[1997] QCA 176
SUPREME COURT OF QUEENSLAND

C.A. No. 553 of 1996

Brisbane

[R. v. Carne]

T H E Q U E E N

DAVID NICHOLAS CARNE

Appellant

Fitzgerald P
de Jersey J
Dowsett J

Judgment delivered 24 June 1997

Separate reasons for judgment of each member of the Court, Fitzgerald P dissenting.

APPEAL ALLOWED. CONVICTION QUASHED. RETRIAL ORDERED.

CATCHWORDS:CONVICTION FOR MURDER - admissibility of appellant's

participation in previous murder on similar fact basis.

Counsel:	K. Copley QC, and with him M. Shanahan for the appellant
M. Byrne QC, and with him R. Martin for the respondent
Solicitors:	Legal Aid Office for the appellant
Queensland Director of Public Prosecutions for the respondent

Hearing date: 2 June 1997

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 24 June 1997

The circumstances giving rise to this appeal are set out in the reasons for judgment of de Jersey J.

At its broadest, the appellant's submission was that evidence of the earlier killing of Jacobson and the New South Wales convictions of the appellant and Harris in respect of that killing was inadmissible at his trial for murder for the second killing of Mrs Heather Edgerton in Queensland; it is his conviction of the murder of Mrs Edgerton which is the subject of the present appeal. Alternatively, the appellant submitted that evidence of his connection with the killing of Jacobson was limited to his involvement as an accessory after the fact to a murder by Harris in accordance with his New South Wales conviction in respect of that killing. It is convenient to put the appellant’s second submission, and all questions related to the New South Wales proceeding concerning the killing of Jacobson including the convictions of the appellant and Harris in that proceeding, to one side initially, and to consider first whether, but for that proceeding, evidence of the killing of Jacobson would have been admissible against the appellant on the charge of murdering Mrs Edgerton.

The prosecution case was that the appellant was present when Mrs. Edgerton was shot, and that he is guilty of murder pursuant to a combination of s.7 or s.8 and sub- s.302(1)(a) or sub-s.302(1)(b) of the Criminal Code. The bases upon which the appellant might be guilty of Mrs. Edgerton's murder were raised by the trial Judge for the jury's consideration as follows:

(a)

the appellant shot Mrs. Edgerton;

(b)

the appellant, knowing of Harris' intention to kill or cause grievous bodily harm to Mrs. Edgerton:

(i)	aided Harris to kill her by encouraging him by his presence; or
(ii)	counselled or procured Harris to kill her; or

(c)

Harris killed Mrs. Edgerton in the prosecution of an unlawful purpose, namely, a drug transaction of which Harris gave evidence, and the appellant and Harris had a common intention to engage in that unlawful purpose and Harris' shooting of Mrs. Edgerton with intent to cause death or grievous bodily harm was committed in the prosecution of, and a probable consequence…

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 Carne

Details

AGLC: R v Carne [1997] QCA 176
Case: [1997] QCA 176
Decision Date: 24/06/1997

CaseChat Overview and Summary

The Court of Appeal heard an appeal by David Nicholas Carne against his conviction for the murder of Heather Edgerton in Queensland. The trial judge had allowed evidence of Carne's involvement in the murder of Richard Jacobson in New South Wales to be admitted, which Carne argued was inadmissible and prejudicial. The court considered whether the evidence of Jacobson's murder was relevant and whether its probative value outweighed its prejudicial effect. The majority of the Court held that the evidence was not sufficiently probative to justify its admission, as it did not establish a reasonable inference of Carne's guilt in the Edgerton murder. The appeal was allowed, the conviction was quashed, and a retrial was ordered. The majority also considered whether the evidence should have been excluded due to Carne's prior conviction in New South Wales for being an accessory after the fact to Jacobson's murder, but concluded that the common law principle of res judicata did not operate to exclude the evidence. The Court found that the admission of the evidence did not constitute an abuse of process.

Orders