R v Cormack - [2013] QCA 342

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cormack [2013] QCA 342

PARTIES:

R
v
CORMACK, Scott Bradley
aka BRACKIN
(appellant)

FILE NO/S:

CA No 184 of 2013
DC No 160 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

15 November 2013

DELIVERED AT:

Brisbane

HEARING DATE:

23 October 2013

JUDGES:

Margaret McMurdo P, Gotterson JA and McMeekin J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.The appeal against conviction is allowed.

2.The guilty verdict is set aside.

3.A verdict of acquittal is entered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR CANNOT BE SUPPORTED HAVING REGARD TO THE EVIDENCE – APPEAL ALLOWED – where the appellant was convicted of arson of a St Vincent de Paul Society store – where the appellant had been working as a volunteer at the store during the day – where the appellant left at approximately 4.30 pm and came back at around 11.00 pm, purportedly to collect some electrical goods he had left at the store – where the appellant called 000 to report a fire in the store – where fire fighters arrived to find the shop engulfed in smoke and the right hand side front door of the store broken – where the appellant identified himself, spoke to police and provided a key to the store – where police seized a metal bar from the appellant's car and the appellant's clothes – where the appellant told police that the metal bar had been used for, inter alia, carrying bulk bags used to transport recyclable material including glass – where the appellant's trial counsel did not make admissions under s 644 Criminal Code 1899 (Qld) in respect of the continuity of the handling of the metal bar and the appellant's clothing – where glass fragments with the same refractive index as the broken front door of the store were found on the appellant's metal bar and the appellant's clothing – where no evidence was led as to the incidence of the type of glass used in the front door of the store – where the police did not investigate the appellant's claim to have used the metal bar in handling bulk bags which may have contained broken glass – where nearby CCTV footage showed an unidentified male who was not the appellant in the vicinity of the store about 50 minutes prior to the store's alarm activating – where the appellant contends that the verdict was unsafe and unsatisfactory in that it was not reasonably open on the evidence – whether verdict unreasonable or cannot be supported having regard to the evidence in terms of s 668E(1) Criminal Code 1899 (Qld)

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION OR NON-DIRECTION – REVIEW OF EVIDENCE – where a forensic scientist from the Queensland Police Fire and Explosion Unit gave evidence that…

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 Cormack

Details

AGLC: R v Cormack [2013] QCA 342
Case: [2013] QCA 342
Decision Date: 15 November 2013

CaseChat Overview and Summary

The case of R v Cormack involved the appellant, who was convicted of arson of a St Vincent de Paul Society store. The appellant, a volunteer at the store, reported a fire at the premises and subsequently provided a key to the store, a metal bar from his car, and his clothes to the police. Glass fragments matching the store's broken front door were found on the metal bar and the appellant's clothing, although no evidence was presented regarding the incidence of the specific type of glass used in the store's door. The appellant argued that the verdict was unsafe and unsatisfactory, claiming it was not reasonably open on the evidence.

The legal issues before the court included whether the verdict was unreasonable or could not be supported having regard to the evidence, and whether the trial judge erred in not directing the jury on the possibility of the fire being caused unintentionally. The appellant's counsel did not make admissions under s 644 Criminal Code 1899 (Qld) regarding the continuity of the handling of the metal bar and the appellant's clothing. The court also considered whether the trial judge erred in failing to direct the jury on s 23 Criminal Code or, at least, in failing to convey that a critical issue was whether the appellant deliberately set fire to the premises.

The court found that the verdict was not reasonably open on the evidence, as there was no evidence led regarding the incidence of the type of glass used in the store's front door, and the police did not investigate the appellant's claim about using the metal bar in handling bulk bags that may have contained broken glass. Additionally, the court held that the trial judge erred in not directing the jury on the possibility of the fire being caused unintentionally. Consequently, the appeal against conviction was allowed, the guilty verdict was set aside, and a verdict of acquittal was entered.

Orders

Orders of the court

1.The appeal against conviction is allowed.

2.The guilty verdict is set aside.

3.A verdict of acquittal is entered.

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 Cormack [2013] QCA 342
PARTIES:	R v CORMACK, Scott Bradley aka BRACKIN (appellant)
FILE NO/S:	CA No 184 of 2013 DC No 160 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	15 November 2013
DELIVERED AT:	Brisbane
HEARING DATE:	23 October 2013
JUDGES:	Margaret McMurdo P, Gotterson JA and McMeekin J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1.The appeal against conviction is allowed. 2.The guilty verdict is set aside. 3.A verdict of acquittal is entered.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR CANNOT BE SUPPORTED HAVING REGARD TO THE EVIDENCE – APPEAL ALLOWED – where the appellant was convicted of arson of a St Vincent de Paul Society store – where the appellant had been working as a volunteer at the store during the day – where the appellant left at approximately 4.30 pm and came back at around 11.00 pm, purportedly to collect some electrical goods he had left at the store – where the appellant called 000 to report a fire in the store – where fire fighters arrived to find the shop engulfed in smoke and the right hand side front door of the store broken – where the appellant identified himself, spoke to police and provided a key to the store – where police seized a metal bar from the appellant's car and the appellant's clothes – where the appellant told police that the metal bar had been used for, inter alia, carrying bulk bags used to transport recyclable material including glass – where the appellant's trial counsel did not make admissions under s 644 Criminal Code 1899 (Qld) in respect of the continuity of the handling of the metal bar and the appellant's clothing – where glass fragments with the same refractive index as the broken front door of the store were found on the appellant's metal bar and the appellant's clothing – where no evidence was led as to the incidence of the type of glass used in the front door of the store – where the police did not investigate the appellant's claim to have used the metal bar in handling bulk bags which may have contained broken glass – where nearby CCTV footage showed an unidentified male who was not the appellant in the vicinity of the store about 50 minutes prior to the store's alarm activating – where the appellant contends that the verdict was unsafe and unsatisfactory in that it was not reasonably open on the evidence – whether verdict unreasonable or cannot be supported having regard to the evidence in terms of s 668E(1) Criminal Code 1899 (Qld) CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION OR NON-DIRECTION – REVIEW OF EVIDENCE – where a forensic scientist from the Queensland Police Fire and Explosion Unit gave evidence that…