R v Forsythe - [2013] QCA 314

SUPREME COURT OF QUEENSLAND

CITATION:

R v Forsythe [2013] QCA 314

PARTIES:

R
v
FORSYTHE, Bevan Carl
(appellant)

FILE NO/S:

CA No 50 of 2013
SC No 169 of 2012
SC No 57 of 2013
SC No 67 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

25 October 2013

DELIVERED AT:

Brisbane

HEARING DATE:

21 August 2013

JUDGES:

Holmes and Morrison JJA and North J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The appeal against conviction is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of one count of murder and one count of attempted murder – where after an earlier dispute the appellant returned to a party with a loaded gun and shot two guests, one fatally – where the appellant submitted that the verdicts were unreasonable because of inconsistencies between the recollections of guests at the party, leaving open the possibility raised by his evidence, that the gun was inadvertently discharged in the course of a struggle – where the appellant submitted that no motive had been established and that his conduct was consistent with an intention to intimidate rather than to kill or do grievous bodily harm – whether it was open to the jury on the whole of the evidence to be satisfied beyond a reasonable doubt of the appellant’s guilt – whether the verdicts were unreasonable

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of one count of murder and one count of attempted murder – where the trial judge directed the jury on the excuse of accident under s 23(1)(a) of the Criminal Code – where defence counsel at trial expressly declined to seek any direction under s 23(1)(b) of the Criminal Code – where on appeal, the appellant submitted both limbs of s 23(1) should have been left to the jury, because his evidence had been that he did not intend to discharge the firearm, and that he did not foresee the shooting of anyone – where there was no evidence which raised accident in any context other than that of an unwilled act under s 23(1)(a) – where the relevant act was the appellant’s discharge of the gun – whether, if that were a willed act, there was any possibility that the result of grievous bodily harm or death was not foreseeable – whether the trial judge erred in not directing the jury on s 23(1)(b) – whether, even if such a direction were required, there was any substantial miscarriage of justice so as to preclude the application of the proviso

Criminal Code 1899 (Qld), s 23(1), s 668E(1A)

M v The Queen (1994) 181 CLR 487; [1994] HCA 63,…

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 Forsythe

Details

AGLC: R v Forsythe [2013] QCA 314
Case: [2013] QCA 314
Decision Date: 25 October 2013

CaseChat Overview and Summary

In the case of R v Forsythe, the appellant was convicted of one count of murder and one count of attempted murder, following an incident where he returned to a party with a loaded gun and shot two guests, one fatally. The appellant appealed against his conviction, arguing that the verdicts were unreasonable due to inconsistencies in the recollections of the party guests, which left open the possibility that the gun was inadvertently discharged during a struggle. Additionally, the appellant contended that no motive had been established and that his conduct was consistent with an intention to intimidate rather than to kill or cause grievous bodily harm. The court was required to determine whether the jury was justified in finding the appellant guilty beyond a reasonable doubt, based on the evidence presented, and whether the verdicts were unreasonable.

The court examined the evidence and concluded that it was open to the jury to be satisfied beyond a reasonable doubt of the appellant's guilt. The inconsistencies in the guests' recollections did not undermine the overall evidence presented, which was sufficient to support the jury's verdicts. Furthermore, the court found that the appellant's conduct, along with the nature of the injuries inflicted, demonstrated an intention to cause death or grievous bodily harm, contrary to his claims of merely intending to intimidate. The court also addressed the appellant's argument regarding the trial judge's direction to the jury on the excuse of accident under s 23(1)(a) of the Criminal Code. The appellant argued that both limbs of s 23(1) should have been left to the jury, but the court found that there was no evidence suggesting that the shooting was anything other than an unwilled act. Consequently, the court held that there was no substantial miscarriage of justice that would preclude the application of the proviso.

In conclusion, the court dismissed the appeal against conviction. The appellant's submissions regarding the reasonableness of the verdicts and the trial judge's direction to the jury were not successful. The evidence presented at trial was sufficient to support the jury's findings, and there was no miscarriage of justice that would warrant a new trial.

Orders

Orders of the court

The appeal against conviction is dismissed.

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 Forsythe [2013] QCA 314
PARTIES:	R v FORSYTHE, Bevan Carl (appellant)
FILE NO/S:	CA No 50 of 2013 SC No 169 of 2012 SC No 57 of 2013 SC No 67 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	25 October 2013
DELIVERED AT:	Brisbane
HEARING DATE:	21 August 2013
JUDGES:	Holmes and Morrison JJA and North J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The appeal against conviction is dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of one count of murder and one count of attempted murder – where after an earlier dispute the appellant returned to a party with a loaded gun and shot two guests, one fatally – where the appellant submitted that the verdicts were unreasonable because of inconsistencies between the recollections of guests at the party, leaving open the possibility raised by his evidence, that the gun was inadvertently discharged in the course of a struggle – where the appellant submitted that no motive had been established and that his conduct was consistent with an intention to intimidate rather than to kill or do grievous bodily harm – whether it was open to the jury on the whole of the evidence to be satisfied beyond a reasonable doubt of the appellant’s guilt – whether the verdicts were unreasonable CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of one count of murder and one count of attempted murder – where the trial judge directed the jury on the excuse of accident under s 23(1)(a) of the Criminal Code – where defence counsel at trial expressly declined to seek any direction under s 23(1)(b) of the Criminal Code – where on appeal, the appellant submitted both limbs of s 23(1) should have been left to the jury, because his evidence had been that he did not intend to discharge the firearm, and that he did not foresee the shooting of anyone – where there was no evidence which raised accident in any context other than that of an unwilled act under s 23(1)(a) – where the relevant act was the appellant’s discharge of the gun – whether, if that were a willed act, there was any possibility that the result of grievous bodily harm or death was not foreseeable – whether the trial judge erred in not directing the jury on s 23(1)(b) – whether, even if such a direction were required, there was any substantial miscarriage of justice so as to preclude the application of the proviso Criminal Code 1899 (Qld), s 23(1), s 668E(1A) M v The Queen (1994) 181 CLR 487; [1994] HCA 63,…