R v Frank - [2010] QCA 150

SUPREME COURT OF QUEENSLAND

CITATION:

R v Frank [2010] QCA 150

PARTIES:

R
v
FRANK, Yasmin Eileen
(appellant)

FILE NO/S:

CA No 240 of 2009
SC No 48 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

18 June 2010

DELIVERED AT:

Brisbane

HEARING DATE:

24 May 2010

JUDGES:

McMurdo P, Muir JA and Cullinane J
Separate reasons for each member of the Court, each concurring as to the orders made

ORDERS:

1. The appeal against conviction is allowed.

2. The guilty verdict for murder is set aside.

3. A re-trial is ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – appellant convicted of murder – deceased killed by single stab to the collar bone area – no evidence that appellant said anything evincing intent – pathologist evidence supported use of significant force – evidence that appellant was angry with deceased – whether jury entitled to conclude that only rational inference from evidence as a whole was that the appellant had intention to injure deceased in a way likely to cause grievous bodily harm – whether verdict unreasonable or insupportable having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – transcript of appellants interview with police tendered as evidence – appellant denied arguing with deceased and denied injuring him – falsity of statements in police interview conceded by defence – prosecution suggested lies were to cover up appellant's aggression – defence did not seek jury direction on lies – whether judge erred in failing to direct the jury as to the use to be made of lies – whether non-direction resulted in a miscarriage of justice

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

Cutter v R (1997) 94 A Crim R 152; [1997] HCA 7, distinguished
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63, applied
Knight v The Queen (1992) 175 CLR 495; [1992] HCA 56, distinguished
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited
R v Baira[2009] QCA 332, distinguished
R v Mitchell[2007] QCA 267, (2007) 174 A Crim R 52, distinguished
Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28, applied

COUNSEL:

R East for the appellant
M Cowen for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

McMURDO P: The appellant, Yasmin Eileen Frank, pleaded not guilty in the Cairns Supreme Court on 27 July 2009 to murdering Martin Zdrilich on 20 February 2007. After a three day trial, she was convicted of murder. She appeals against her conviction on three grounds. The first is that it was "unsafe and unsatisfactory". The second is…

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 Frank

Details

AGLC: R v Frank [2010] QCA 150
Case: [2010] QCA 150
Decision Date: 18 June 2010

CaseChat Overview and Summary

In the case of R v Frank, the appellant was convicted of murder following the death of the deceased, who had been stabbed in the collar bone area. The appeal against this conviction focused on the reasonableness and supportability of the verdict given the evidence presented. The pathologist's testimony indicated that significant force was used in the stabbing, and there was evidence suggesting that the appellant was angry with the deceased. The central issue before the court was whether the jury was justified in concluding that the only rational inference from the evidence was that the appellant intended to injure the deceased in a way likely to cause grievous bodily harm.

The court examined the evidence and the arguments made by both parties. It was noted that the appellant had denied any argument or injury to the deceased during a police interview, statements which the defence conceded were false. The prosecution argued that these lies were intended to cover up the appellant's aggression. However, the defence did not seek any direction from the jury regarding the use of these false statements. The court had to determine whether the judge's failure to direct the jury on this matter amounted to a non-direction that resulted in a miscarriage of justice. The court found that the failure to provide a direction on how the jury should consider the lies in the police interview was significant and likely influenced the jury's verdict.

The court concluded that the jury's verdict was unreasonable or insupportable given the evidence, particularly because of the non-direction regarding the lies told by the appellant. This error was deemed significant enough to constitute a miscarriage of justice. As a result, the appeal against the conviction was allowed, the guilty verdict for murder was set aside, and a re-trial was ordered.

Orders

Orders of the court

1. The appeal against conviction is allowed.

2. The guilty verdict for murder is set aside.

3. A re-trial is ordered.

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 Frank [2010] QCA 150
PARTIES:	R v FRANK, Yasmin Eileen (appellant)
FILE NO/S:	CA No 240 of 2009 SC No 48 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	18 June 2010
DELIVERED AT:	Brisbane
HEARING DATE:	24 May 2010
JUDGES:	McMurdo P, Muir JA and Cullinane J Separate reasons for each member of the Court, each concurring as to the orders made
ORDERS:	1. The appeal against conviction is allowed. 2. The guilty verdict for murder is set aside. 3. A re-trial is ordered.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – appellant convicted of murder – deceased killed by single stab to the collar bone area – no evidence that appellant said anything evincing intent – pathologist evidence supported use of significant force – evidence that appellant was angry with deceased – whether jury entitled to conclude that only rational inference from evidence as a whole was that the appellant had intention to injure deceased in a way likely to cause grievous bodily harm – whether verdict unreasonable or insupportable having regard to the evidence CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – transcript of appellants interview with police tendered as evidence – appellant denied arguing with deceased and denied injuring him – falsity of statements in police interview conceded by defence – prosecution suggested lies were to cover up appellant's aggression – defence did not seek jury direction on lies – whether judge erred in failing to direct the jury as to the use to be made of lies – whether non-direction resulted in a miscarriage of justice Criminal Code 1899 (Qld), s 668E(1) Cutter v R (1997) 94 A Crim R 152; [1997] HCA 7, distinguished Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63, applied Knight v The Queen (1992) 175 CLR 495; [1992] HCA 56, distinguished M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited R v Baira[2009] QCA 332, distinguished R v Mitchell[2007] QCA 267, (2007) 174 A Crim R 52, distinguished Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28, applied
COUNSEL:	R East for the appellant M Cowen for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent