R v Dyke

Case [2009] QCA 339 22 October 2009

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Dyke [2009] QCA 339

PARTIES: R
v
DYKE, Russell David
(appellant)

FILE NO/S: CA No 93 of 2009
DC No 426 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction – Delivery of Reasons

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON: Orders delivered 22 October 2009
Reasons delivered 3 November 2009

DELIVERED AT:

Brisbane

HEARING DATE:

22 October 2009

JUDGES: Keane, Muir and Fraser JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:
Delivered ex tempore 22 October 2009:

1.   Appeal allowed.

2.   Convictions set aside.

3.   Verdicts of acquittal entered.

CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where appellant convicted of arson, fraud and attempted fraud – where Crown case was that the appellant deliberately burnt down his house in order to obtain insurance money – where Crown argued that the appellant’s explanation for how the fire started was improbable; that the appellant had financial troubles and therefore motive to defraud his insurer; and that the appellant had previously spoken about burning his house down – whether evidence of experiments conducted as to how the fire started was admissible – whether evidence that the appellant was in a difficult financial position established he had the motive to burn down his house and defraud his insurer – whether a properly directed jury could be satisfied beyond reasonable doubt that the appellant committed the offences

Criminal Code 1899 (Qld), s 668E(1)
Property Law Act 1974 (Qld), s 58, s 91

Abel Lemon & Co Pty Ltd v Baylin Pty Ltd (1985) 63 ALR 161; 60 ALJR 190, cited
Birks v Western Australia (2007) 33 WAR 291; (2007) 168 A Crim R 350; [2007] WASCA 29, considered
Gordon v R (1982) 41 ALR 64, cited
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, cited
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited
R v Baker [1989] 3 NZLR 635, cited
R v Harbour [1995] 1 NZLR 440, considered
R v Ping [2006] 2 Qd R 69; [2005] QCA 472, cited
R v Quinn; R v Bloom [1962] 2 QB 245, cited
Ramsay v Watson (1961) 108 CLR 642; [1961] HCA 65, cited
Scott v Numurkah Corporation (1954) 91 CLR 300; [1954] HCA 14, cited
Simpson v Scottish Union Insurance Co (1863) 1 Hem & M 618, cited
Sinnott v Bowden [1912] 2 Ch 414, cited
The Queen v Fowler (1985) 39 SASR 440, cited
The Queen v Taufahema (2007) 228 CLR 232; [2007] HCA 11, cited

COUNSEL:

D R MacKenzie for the appellant
G J Cummings for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant

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 Dyke

Details

AGLC: R v Dyke [2009] QCA 339
Case: [2009] QCA 339
Decision Date: 22 October 2009

CaseChat Overview and Summary

In the matter of R v Dyke, the appellant was convicted in the Supreme Court of Victoria of arson, fraud and attempted fraud, with the primary contention being that he deliberately set fire to his own house to claim insurance money. The appellant appealed against his convictions, contending that the jury's verdict was unreasonable and not supported by the evidence presented. The High Court of Australia was tasked with determining the admissibility of evidence related to experiments about the fire's origin, the relevance of the appellant's financial difficulties as a motive, and the sufficiency of the evidence to support the jury's conclusions beyond reasonable doubt.

The court examined whether the evidence of experiments regarding the fire's origin was properly admitted and whether this evidence could rationally support the appellant's guilt. The court also assessed whether the evidence of the appellant's financial troubles was relevant and sufficient to establish motive. Additionally, the court scrutinised whether the totality of the evidence could convincingly support the jury's verdict that the appellant committed the crimes as charged.

The High Court found that the evidence concerning the experiments was not admissible as it did not meet the criteria for relevance and probative value. Furthermore, the court held that the evidence of the appellant's financial difficulties, while relevant to motive, was not of sufficient quality to support a finding of guilt beyond reasonable doubt. The court concluded that the jury could not have properly considered all the evidence and reached a verdict that was supported by it. Consequently, the appeal was allowed, the convictions were set aside, and verdicts of acquittal were entered in their place.

Orders

Orders of the court

1. Appeal allowed.

2. Convictions set aside.

3. Verdicts of acquittal entered.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Dyke [2009] QCA 339

Most Recent Citation

Director of Public Prosecutions v Farquharson (No.2) (Ruling No. 4) [2010] VSC 210

Cases citing this decision · 2 of 2 shown

R v O'Rourke
[2010] QCA 122 Para 1

…he policy had been taken out, did not stand to gain financially from the destruction of the insured property and any resulting insurance payment. [10][2009] QCA 339.…
Director of Public Prosecutions v Farquharson (No.2) (Ruling No. 4)
[2010] VSC 210 Para 1

…esses that were exposed in cross examination was incapable of excluding the hypothesis consistent with the appellant’s innocence. [12][2009] QCA 339.…

View all 2 citing cases →

Cases cited in this decision · 16 of 16 shown

R v Taufahema
[2007] HCA 11 Para 1

…16] It is therefore unnecessary to give separate consideration to appeal grounds 2 and 3. [16] R v Taufahema (2007) 228 CLR 232 at [35], [52], [159]; [2007] HCA 11.…
Birks v The State of Western Australia
[2007] WASCA 29

…td v Baylin Pty Ltd (1985) 63 ALR 161; 60 ALJR 190, cited Birks v Western Australia (2007) 33 WAR 291; (2007) 168 A Crim R 350; [2007] WASCA 29, considered Gordon v R (1982) 41 ALR 64, cited M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSW…
The Queen v Fowler
[2007] NZCA 1

…[1954] HCA 14, cited Simpson v Scottish Union Insurance Co (1863) 1 Hem & M 618, cited Sinnott v Bowden [1912] 2 Ch 414, cited The Queen v Fowler (1985) 39 SASR 440, cited The Queen v Taufahema (2007) 228 CLR 232; [2007] HCA 11, cited COUNSEL: D R MacKenzie for the appellant G J Cummings for the respondent SOLICITORS: Lega…
R v Ping
[2005] QCA 472

…6; [2002] HCA 53, cited R v Baker [1989] 3 NZLR 635, cited R v Harbour [1995] 1 NZLR 440, considered R v Ping [2006] 2 Qd R 69; [2005] QCA 472, cited R v Quinn; R v Bloom [1962] 2 QB 245, cited Ramsay v Watson (1961) 108 CLR 642; [1961] HCA 65, cited Scott v Numurkah Corporation (1954) 91 CLR 300; [1954] HCA 14,…
MFA v The Queen
[2002] HCA 53

…3, cited Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, cited MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited R v Baker [1989] 3 NZLR 635, cited R v Harbour [1995] 1 NZLR 440, considered R v Ping [2006] 2 Qd R 69; [2005] QCA 472, cited R v Quinn; R v Bloom [1962] 2 QB 245,…
Makita (Australia) Pty Ltd v Sprowles
[2001] NSWCA 305

…ALR 64, cited M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, cited MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited R v Baker [1989] 3 NZLR 635, cited R v Harbour [1995] 1 NZLR 440, considered R v Ping [2006] 2 Qd R 69; [20…
Gordon v The Queen
[1996] HCATrans 271 Para 1

…3] – [46], citing Makita (Australia) Pty Ltd v Sprowles at 729 – 742, Ramsay v Watson (1961) 108 CLR 642 at 648 – 649; and Gordon v R (1982) 41 ALR 64.…
M v the Queen
[1994] HCA 63

…291; (2007) 168 A Crim R 350; [2007] WASCA 29, considered Gordon v R (1982) 41 ALR 64, cited M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, cited MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited R v Baker [1989] 3 NZLR…
Chamberlain v The Queen (No 1)
[1983] HCA 13 Para 1

…al of expert opinion. See "Phipson on Evidence", 15th ed, 37 — 17 and "Halsbury's Laws of England" (1st ed) page 481. In Chamberlain v R [No 2] (1984) 153 CLR 514 at 548, it may be observed that experiments were carried out by a police officer to support an opinion that a jumpsuit was cut by scissors rather than torn…
Markby v The Queen
[1978] HCA 29

…n in evidence of material that is intrinsically highly prejudicial, such as evidence of bad character or evidence of the kind considered in Maric v R (1978) 52 ALJR 631. The evidence in question was no more than evidence of tests conducted with a view to ascertaining what could be seen in and from the house having re…
Ramsay v Watson
[1961] HCA 65

…v Ping [2006] 2 Qd R 69; [2005] QCA 472, cited R v Quinn; R v Bloom [1962] 2 QB 245, cited Ramsay v Watson (1961) 108 CLR 642; [1961] HCA 65, cited Scott v Numurkah Corporation (1954) 91 CLR 300; [1954] HCA 14, cited Simpson v Scottish Union Insurance Co (1863) 1 Hem & M 618, cited Sinnott v Bowden [1912] 2 Ch…
Scott v Numurkah Corporation
[1954] HCA 14

…[1962] 2 QB 245, cited Ramsay v Watson (1961) 108 CLR 642; [1961] HCA 65, cited Scott v Numurkah Corporation (1954) 91 CLR 300; [1954] HCA 14, cited Simpson v Scottish Union Insurance Co (1863) 1 Hem & M 618, cited Sinnott v Bowden [1912] 2 Ch 414, cited The Queen v Fowler (1985) 39 SASR 440, cited The Queen v T…
[1995] 1 NZLR 440
[1995] 1 NZLR 440

…[2001] NSWCA 305, cited MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited R v Baker [1989] 3 NZLR 635, cited R v Harbour [1995] 1 NZLR 440, considered R v Ping [2006] 2 Qd R 69; [2005] QCA 472, cited R v Quinn; R v Bloom [1962] 2 QB 245, cited Ramsay v Watson (1961) 108 CLR 642; [1961] HCA 65, cited Scott v N…
Pty Ltd v Sprowles
636 F Supp 1419 Para 1

…appellant's point that there were significant weaknesses in Mr Smith's evidence of his “indicative” opinion. [10]See, eg , Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 per Heydon JA , particularly at [64] – [66], [85] and at [70] quoting from the judgment of King CJ in R v Fowler (1985) 39 SASR 440 at 442, 443;…
[1962] 2 QB 245
[1962] 2 QB 245 Para 1

…ith burning cigarettes and Mr Smith’s opinion evidence that the fire was probably not started by a burning cigarette. [5]See R v Quinn; R v Bloom [1962] 2 QB 245 at 257; Scott v Numurkah Corporation (1954) 91 CLR 300 per Fullagar J at 316.…
[1989] 3 NZLR 635
[1989] 3 NZLR 635 Para 1

…al conditions so as to render the evidence admissible, and that if the evidence was admissible any points of difference went to weight. [7] R v Baker [1989] 3 NZLR 635 at 638.…

Legislation cited in this decision · 3

Dillon v Baltic Shipping Company
1 mention (from Para 1)
Fires Prevention (Metropolis) Act 1774 (c.78)
1 mention (from Para 1)
Property Law Act 1974 (Qld)
58 1 mention

CITATION:	R v Dyke [2009] QCA 339
PARTIES:	R v DYKE, Russell David (appellant)
FILE NO/S:	CA No 93 of 2009 DC No 426 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction – Delivery of Reasons
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	Orders delivered 22 October 2009 Reasons delivered 3 November 2009
DELIVERED AT:	Brisbane
HEARING DATE:	22 October 2009
JUDGES:	Keane, Muir and Fraser JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Delivered ex tempore 22 October 2009: 1. Appeal allowed. 2. Convictions set aside. 3. Verdicts of acquittal entered.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where appellant convicted of arson, fraud and attempted fraud – where Crown case was that the appellant deliberately burnt down his house in order to obtain insurance money – where Crown argued that the appellant’s explanation for how the fire started was improbable; that the appellant had financial troubles and therefore motive to defraud his insurer; and that the appellant had previously spoken about burning his house down – whether evidence of experiments conducted as to how the fire started was admissible – whether evidence that the appellant was in a difficult financial position established he had the motive to burn down his house and defraud his insurer – whether a properly directed jury could be satisfied beyond reasonable doubt that the appellant committed the offences Criminal Code 1899 (Qld), s 668E(1) Property Law Act 1974 (Qld), s 58, s 91 Abel Lemon & Co Pty Ltd v Baylin Pty Ltd (1985) 63 ALR 161; 60 ALJR 190, cited Birks v Western Australia (2007) 33 WAR 291; (2007) 168 A Crim R 350; [2007] WASCA 29, considered Gordon v R (1982) 41 ALR 64, cited M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, cited MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited R v Baker [1989] 3 NZLR 635, cited R v Harbour [1995] 1 NZLR 440, considered R v Ping [2006] 2 Qd R 69; [2005] QCA 472, cited R v Quinn; R v Bloom [1962] 2 QB 245, cited Ramsay v Watson (1961) 108 CLR 642; [1961] HCA 65, cited Scott v Numurkah Corporation (1954) 91 CLR 300; [1954] HCA 14, cited Simpson v Scottish Union Insurance Co (1863) 1 Hem & M 618, cited Sinnott v Bowden [1912] 2 Ch 414, cited The Queen v Fowler (1985) 39 SASR 440, cited The Queen v Taufahema (2007) 228 CLR 232; [2007] HCA 11, cited
COUNSEL:	D R MacKenzie for the appellant G J Cummings for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant