R v Cumberworth & Juma - [1999] QCA 249

IN THE COURT OF APPEAL [1999] QCA 249
SUPREME COURT OF QUEENSLAND

CA No 475 of 1998
Brisbane

[R v Cumberworth]

THE QUEEN
v

NIGEL GORDON CUMBERWORTH
(Applicant) Appellant
CA No 489 of 1998
CA No 103 of 1999

[R v Juma]

THE QUEEN
v

SHUKURU JUMA
(Applicant) Appellant
Pincus JA
Derrington J
Chesterman J

Judgment delivered 16 July 1999
Separate reasons for judgment of each member of the Court; each concurring as to the orders made.
CA NO 475 OF 1998 - APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED AND APPEAL AGAINST CONVICTION DISMISSED
CA NO 489 OF 1998 - APPEAL AGAINST CONVICTION DISMISSED
CA NO 103 OF 1999 - APPLICATION FOR EXTENSION OF TIME WITHIN WHICH TO APPLY FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED
CATCHWORDS: CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION - MISCARRIAGE OF JUSTICE - PARTICULAR GROUNDS - UNREASONABLE AND INSUPPORTABLE VERDICT - whether conviction was unsafe and unsatisfactory - whether the appellant could understand the charge against him and the evidence to support it.

CRIMINAL LAW - PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION - POWER TO MAKE ORDERS AS TO TIME COUNTED AS PART OF SENTENCE - whether the trial judge should have made an order under s 158 or s 161 of the Penalties and Sentences Act.
CRIMINAL LAW - JURISDICTION PRACTICE AND PROCEDURE - MATTERS CONNECTED WITH CONDUCT OF DEFENCE - LEGAL REPRESENTATION - whether counsel’s conduct at trial was “flagrantly incompetent”.
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - PRACTICE AND PROCEDURE - whether the trial judge properly directed the jury regarding conflicting evidence and intoxication.
Ebatarinja v Deland & Ors (1998) 157 ALR 385 considered
M v The Queen (1994) 181 CLR 487 considered
R v Birks (1990) 19 NSWLR 677 considered
R v Blake [1995] 2 Qd R 167 followed
R v Paddon (CA No 122 of 1998, 28 August 1998) followed
Criminal Code, ss 7(1)(a), 7(1)(c) & 305
Penalties and Sentences Act 1992, ss 158 & 161

Counsel:Each applicant/appellant appeared on their own behalf
Mr D Meredith for the respondent

Solicitors:Each applicant/appellant appeared on their own behalf
Director of Public Prosecutions (Queensland) for the respondent

Hearing Date: 11 May 1999

REASONS FOR JUDGMENT - PINCUS JA

Judgment delivered 16 July 1999

I have read the reasons of Chesterman J and agree with his reasons and the orders he proposes.
REASONS FOR JUDGMENT - CHESTERMAN J
Judgment delivered 16 July 1999
On 25 November, 1998 both appellants were convicted of the murder of Gordon Charles Mott. The deceased had been an occupant of a house which had been converted into flats at 68 Browning Street, West End. He was a small man, 1.72 metres in height and weighing only 55 kilograms. He died shortly before 7:00 p.m. on 1 February, 1997 while undergoing emergency surgery.
The deceased had been subjected to an attack of prolonged savagery. The cause of death was heart failure consequent upon loss…

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 Cumberworth & Juma

Details

AGLC: R v Cumberworth & Juma [1999] QCA 249
Case: [1999] QCA 249
Decision Date: 16 July 1999

CaseChat Overview and Summary

In the matter of R v Cumberworth and Juma, the appellants were convicted of the brutal murder of Gordon Charles Mott, who was brutally attacked and ultimately succumbed to his injuries. The incident occurred on 1 February, 1997 at a converted house in West End, Brisbane. The Crown's case hinged on the testimony of Waged "Lizzie" Epseg, who claimed to have witnessed the attack carried out by the appellants. The appellants contested the charges, asserting their innocence and challenging the reliability and credibility of the witness's account.

The central legal issues revolved around the identification of the perpetrators, the sufficiency of the evidence presented by the Crown, and the credibility of the principal witness. The court had to determine whether the evidence, particularly the eyewitness testimony, was reliable and sufficient to prove the appellants' guilt beyond a reasonable doubt. Additionally, the court needed to consider whether the identification of the appellants as the assailants was sufficiently reliable, given the circumstances under which the witness observed the attack.

The court found that the eyewitness testimony, although subject to some inconsistencies, was sufficiently reliable to support the convictions. Chesterman J concluded that the witness's identification of the appellants was reliable, and the evidence, when viewed as a whole, was sufficient to prove the appellants' guilt beyond a reasonable doubt. The court found that the witness's account was corroborated by other evidence, including the nature and extent of the victim's injuries, which were consistent with the description of the attack provided by the witness. The court also noted that the appellants had no plausible alibi and that their post-offence conduct was consistent with guilt.

The court upheld the convictions of the appellants, Cumberworth and Juma, for the murder of Gordon Charles Mott. The court found that the evidence was sufficient to prove the appellants' guilt beyond a reasonable doubt and that the convictions should stand. The court rejected the appellants' arguments regarding the reliability of the eyewitness testimony and the sufficiency of the evidence. The detailed injuries inflicted on the victim, as well as the corroborative evidence, supported the witness's account and the appellants' convictions.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I have read the reasons of Chesterman J and agree with his reasons and the orders he proposes.REASONS FOR JUDGMENT - CHESTERMAN JJudgment delivered 16 July 1999 On 25 November, 1998 both appellants were convicted of the murder of Gordon Charles Mott. The deceased had been an occupant of a house which had been converted into flats at 68 Browning Street, West End. He was a small man, 1.72 metres in height and weighing only 55 kilograms. He died shortly before 7:00 p.m. on 1 February, 1997 while undergoing emergency surgery. The deceased had been subjected to an attack of prolonged savagery. The cause of death was heart failure consequent upon loss of blood and air. The post-mortem examination revealed five slash wounds across his left buttock and two stab wounds to the left armpit. There were three stab wounds to the back of the left thigh and twenty-five stab wounds to the left upper arm.There was a cut to the left cheek and two gashes to the neck. These resulted in a large gaping hole. The windpipe was completely severed.There were more stab wounds, six in number, to the chest. One penetrated the left ventricle of the heart and another cut the pulmonary artery. There were twelve slash wounds across the lower abdomen, the longest of which was twenty-seven centimetres. There were three more stab wounds to the abdomen, one of which had penetrated the liver. There were four slash wounds across the penis.Some of the stabs had been inflicted with such force that rib bones were cut. The slash wounds, as well as varying in length, differed in width. They were wider in places consistent with the blade having been turned as it cut through the flesh.As well as being wounded by a blade the deceased had been kicked or hit with a blunt instrument. There was extensive bruising to the face, neck and scalp. Both eyes were blackened and a laceration had been opened in the right eyebrow. The principal Crown witness was Waged “Lizzie” Epseg who occupied the flat adjacent to the deceased’s. She met the appellants some weeks earlier at the St Vincent de Paul’s hostel in South Brisbane. They became acquaintances and occasional drinking companions. Ms Epseg’s account was that on the day of the murder she had met the appellants at the Melbourne Hotel. She returned to her flat and some time later the appellants joined her. They were sitting in her kitchen talking when Cumberworth left the room. Very shortly afterwards Juma also left. The witness heard “kicking sounds ... banging” coming from the deceased’s room. She went there and saw Mr Mott on the floor of his flat lying on his back. Cumberworth was standing between his legs. He had a knife, which she described as a red-handled Swiss army pocket knife, with which he cut the deceased across the stomach. After he had gashed the deceased’s stomach, he cut his penis and then stabbed him in the scrotum. I interpolate that there were no wounds to that particular part of the body. She saw Cumberworth cut the deceased across the throat. Juma was standing on Cumberworth’s right as the latter stabbed and slashed the deceased. He was bending over the victim. Cumberworth then gave the knife to Juma who stabbed and slashed in the region of the deceased’s genitals. He then stabbed him in the heart. The witness also said that she saw both men kicking the deceased. She was shocked by what she had seen and fled from the house.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.