R v Eustance - [2009] QCA 28

SUPREME COURT OF QUEENSLAND

CITATION:

R v Eustance [2009] QCA 28

PARTIES:

R
v
EUSTANCE, Stanley John
(appellant)

FILE NO/S:

CA No 254 of 2008
DC No 374 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

24 February 2009

DELIVERED AT:

Brisbane

HEARING DATE:

16 February 2009

JUDGES:

de Jersey CJ, Muir JA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Appeal allowed

2.   The conviction on count 3 of the indictment be set aside

3.   There be a retrial on that count

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of wilfully and unlawfully damaging a glass door and wilfully and unlawfully setting fire to a house – where the appellant was sentenced to a term of four years imprisonment for the arson offence and to a concurrent term of imprisonment of two months for the other offence – where the primary judge refused to direct that intoxication be taken into account in determining whether the appellant's conduct satisfied the elements of the arson offence – whether refusal to give the direction amounted to an error of law

Criminal Code 1899 (Qld), s 461

Darkan v The Queen (2006) 227 CLR 373, [2006] HCA 34, considered
R v Kusu (1981) Qd R 136, cited
R v Lockwood, ex parte Attorney-General [1981] Qd R 209, considered
The Queen v Timothy Noel Buckley, unreported, Supreme Court of Brisbane, 7 April 1982, cited

COUNSEL:

M Green 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

de JERSEY CJ: I have had the advantage of reading the reasons for judgment of Muir JA. I agree with the orders proposed by His Honour and with his reasons.

MUIR JA: Introduction

After a trial in the District Court in Cairns, the appellant was convicted of wilfully and unlawfully damaging a glass door and of wilfully and unlawfully setting fire to a house. He was sentenced to a term of four years imprisonment for the arson offence and to a concurrent term of imprisonment of two months for the other offence. He appeals against his conviction for arson.

Section 461 of the Criminal Code relevantly provides:

"(1)Any person who wilfully and unlawfully sets fire to any of the things following, that is to say –
(a)a building or structure …
is guilty of a crime, and is liable to imprisonment for life."

The learned primary judge in his summing-up, directed the jury as follows:

"The elements … which the prosecution must prove beyond a reasonable doubt are … that the defendant did so wilfully; that is, the defendant either had an actual intention to set fire to the property or deliberately…

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 Eustance

Details

AGLC: R v Eustance [2009] QCA 28
Case: [2009] QCA 28
Decision Date: 24 February 2009

CaseChat Overview and Summary

The appellant in this case was convicted of wilfully and unlawfully damaging a glass door and wilfully and unlawfully setting fire to a house. He was sentenced to a term of four years imprisonment for the arson offence and to a concurrent term of imprisonment of two months for the other offence. The primary judge refused to direct that intoxication be taken into account in determining whether the appellant's conduct satisfied the elements of the arson offence. The appellant appealed against his conviction on the arson charge, arguing that the primary judge's refusal to direct that intoxication be taken into account amounted to an error of law.

The court considered whether the primary judge's refusal to direct that intoxication be taken into account amounted to an error of law. The court noted that the primary judge had held that intoxication was not a defence to the charge of arson but had not addressed whether intoxication could be taken into account in determining whether the appellant's conduct satisfied the elements of the arson offence. The court held that the primary judge's failure to address this issue amounted to an error of law, as it was necessary to consider whether intoxication could be taken into account in determining whether the appellant's conduct satisfied the elements of the arson offence. The court held that the error of law was not harmless and that it was likely to have had a significant effect on the outcome of the trial.

The appeal was allowed, and the conviction on count 3 of the indictment was set aside. There was a retrial on that count. The court ordered that the conviction on count 3 of the indictment be set aside and that there be a retrial on that count.

Orders

Orders of the court

1. Appeal allowed

2. The conviction on count 3 of the indictment be set aside

3. There be a retrial on that count

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.

CITATION:	R v Eustance [2009] QCA 28
PARTIES:	R v EUSTANCE, Stanley John (appellant)
FILE NO/S:	CA No 254 of 2008 DC No 374 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	24 February 2009
DELIVERED AT:	Brisbane
HEARING DATE:	16 February 2009
JUDGES:	de Jersey CJ, Muir JA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal allowed 2. The conviction on count 3 of the indictment be set aside 3. There be a retrial on that count
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of wilfully and unlawfully damaging a glass door and wilfully and unlawfully setting fire to a house – where the appellant was sentenced to a term of four years imprisonment for the arson offence and to a concurrent term of imprisonment of two months for the other offence – where the primary judge refused to direct that intoxication be taken into account in determining whether the appellant's conduct satisfied the elements of the arson offence – whether refusal to give the direction amounted to an error of law Criminal Code 1899 (Qld), s 461 Darkan v The Queen (2006) 227 CLR 373, [2006] HCA 34, considered R v Kusu (1981) Qd R 136, cited R v Lockwood, ex parte Attorney-General [1981] Qd R 209, considered The Queen v Timothy Noel Buckley, unreported, Supreme Court of Brisbane, 7 April 1982, cited
COUNSEL:	M Green 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