R v CAW

SUPREME COURT OF QUEENSLAND

CITATION:

R v CAW [2010] QCA 103

PARTIES:

R
v
CAW
(appellant)

FILE NO/S:

CA No 134 of 2009
SC No 32 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Bundaberg

DELIVERED ON:

7 May 2010

DELIVERED AT:

Brisbane

HEARING DATE:

3 December 2009

JUDGES:

McMurdo P, Muir JA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The appeal is dismissed

CATCHWORDS:

CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – DIMINISHED RESPONSIBILITY – EVIDENCE – appellant convicted of murder – appellant suffering from schizophrenia at time of killing – whether appellant's capacity to control his actions or to know that he ought not kill the deceased was substantially impaired under s 304A Criminal Code

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – OTHER MATTERS – two psychiatrists gave opinions that appellant's capacity under s 304A was substantially impaired at time of killing – two psychiatrists gave contrary opinions – all opinions depended upon reliability of appellant's account of events – whether jury entitled to find appellant's evidence not truthful or reliable – whether jury entitled to reject the evidence of defence psychiatrists – whether jury entitled to prefer evidence of prosecution psychiatrists – whether after reviewing all evidence it was open to jury to convict of murder rather than manslaughter on basis of diminished responsibility under s 304A

Criminal Code 1899 (Qld), s 27, s 304A, s 668E(1)

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited

COUNSEL:

B Q Farr SC for the appellant
M J Copley SC for the respondent

SOLICITORS:

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

Table of Contents

REASONS OF McMURDO P

The Appellant's Contentions

Section 304A

The Prosecution Case

The appellant's interviews with police
The evidence of the appellant's father
The evidence of the appellant's mother
The evidence of the appellant's sister
The evidence of the appellant's younger brother
The evidence of the appellant's sister-in-law
The evidence of the appellant's older brother
Other evidence

The Defence Case

The appellant's evidence
Dr Nielssen's evidence
Dr Varghese's evidence

The Prosecution Rebuttal Case

Dr Reddan's evidence
Dr Voita's evidence

The Judge's Summing-up

Conclusion

REASONS OF MUIR JA …………………………………………………………….....44

REASONS OF ATKINSON J ………………………………………………………….44

1. McMURDO P: The appellant was convicted on 1 May 2009 after a seven day trial of murdering his two year old nephew on 25 March 2006. He was 26 at the time of his conviction and 23 at the time of the offence. He appeals against his conviction contending that the guilty verdict is unsafe and unsatisfactory and not according to law, that is, "it is unreasonable, or can not be supported having regard to the evidence" under…