R v Fred - [2001] QCA 561

SUPREME COURT OF QUEENSLAND

CITATION:

R v Fred [2001] QCA 561

PARTIES:

R
v
FRED, Doris
(appellant)

FILE NO/S:

CA No 193 of 2001
SC No 261 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

11 December 2001

DELIVERED AT:

Brisbane

HEARING DATE:

20 November 2001

JUDGES:

McPherson JA, Mackenzie and Mullins JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Appeal allowed. Verdict and conviction set aside.
Verdict and judgment of acquittal of the appellant entered on the count of murder in the indictment.

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – HOMICIDE – MURDER – PROOF AND EVIDENCE – OTHER CASES - appeal against murder conviction on the grounds that the jury’s verdict was unreasonable and the conviction is unsafe and unsatisfactory

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – WHERE EVIDENCE CIRCUMSTANTIAL – WHERE APPEAL ALLOWED – consideration of crown case – whether sufficient evidence that the appellant counselled or procured the co-accused to commit an act – whether sufficient evidence that the appellant did something for the purpose of and/or enabling the co-accused to commit the act – whether ‘criminally responsible’ under s 7 Criminal Code

APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PRACTICE AFTER CRIMINAL APPEAL LEGISLATION – POWER TO ORDER NEW TRIAL AND OR QUASH CONVICTION AND DIRECT ENTRY OF JUDGMENT OF ACQUITTAL – appeal allowed and verdict and conviction set aside – where verdict and judgment of acquittal of the appellant entered on the count of murder in the indictment – whether a retrial can only be ordered if there is some other viable case based on the remainder of the evidence.

Criminal Code (Qld) s 7, s 7(1)(b), s 7(1)(c), s 7(1)(d)
Evidence Act 1977 (Qld) s 101

R v Coney (1882) 8 QBD 534, considered
R v Jervis [1993] 1 Qd R 643, considered
R v Oberbillig [1989] 1 Qd R 342, considered

COUNSEL:

A Rafter for the appellant
S Bain for the respondent

SOLICITORS:

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

McPHERSON JA: Early on 12 November 1999 Robert Fred shot and killed Robert Smith at Mt Garnet. The deceased Robert Smith was the husband of the appellant Doris Fred, who was the mother of Robert Fred. At the time in question, they all lived together in the house in Mt Garnet in which the deceased was murdered. Robert Fred was found guilty of the murder at a trial in the Supreme Court at Cairns at which the appellant Doris was also tried and found guilty of murdering the deceased.

The appellant was away from home at the time of the killing. The prosecution alleged that her criminal responsibility for the murder arose under either or both of s…

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 Fred

Details

AGLC: R v Fred [2001] QCA 561
Case: [2001] QCA 561
Decision Date: 11 December 2001

CaseChat Overview and Summary

In the case of R v Fred, the appellant was convicted of murder, and subsequently appealed against the conviction. The central issue was whether the jury's verdict was unreasonable, leading to an unsafe and unsatisfactory conviction. The appeal hinged on the sufficiency of the evidence to establish the appellant's criminal responsibility for the murder under section 7 of the Criminal Code.

The court examined the evidence presented in the Crown's case to determine whether there was sufficient proof that the appellant had counselled or procured the co-accused to commit the murder, or whether the appellant had done something for the purpose of enabling the co-accused to commit the act. The court found that the evidence was largely circumstantial and insufficient to establish the appellant's involvement beyond a reasonable doubt.

Consequently, the appeal was allowed, the verdict and conviction were set aside, and a verdict and judgment of acquittal were entered in respect of the count of murder. The court held that, given the insufficiency of the evidence, a retrial could not be ordered unless there was some other viable case based on the remainder of the evidence.

Orders

Orders of the court

Appeal allowed. Verdict and conviction set aside.

Verdict and judgment of acquittal of the appellant entered on the count of murder in the indictment.

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 Fred [2001] QCA 561
PARTIES:	R v FRED, Doris (appellant)
FILE NO/S:	CA No 193 of 2001 SC No 261 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	11 December 2001
DELIVERED AT:	Brisbane
HEARING DATE:	20 November 2001
JUDGES:	McPherson JA, Mackenzie and Mullins JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Appeal allowed. Verdict and conviction set aside. Verdict and judgment of acquittal of the appellant entered on the count of murder in the indictment.
CATCHWORDS:	CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – HOMICIDE – MURDER – PROOF AND EVIDENCE – OTHER CASES - appeal against murder conviction on the grounds that the jury’s verdict was unreasonable and the conviction is unsafe and unsatisfactory CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – WHERE EVIDENCE CIRCUMSTANTIAL – WHERE APPEAL ALLOWED – consideration of crown case – whether sufficient evidence that the appellant counselled or procured the co-accused to commit an act – whether sufficient evidence that the appellant did something for the purpose of and/or enabling the co-accused to commit the act – whether ‘criminally responsible’ under s 7 Criminal Code APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PRACTICE AFTER CRIMINAL APPEAL LEGISLATION – POWER TO ORDER NEW TRIAL AND OR QUASH CONVICTION AND DIRECT ENTRY OF JUDGMENT OF ACQUITTAL – appeal allowed and verdict and conviction set aside – where verdict and judgment of acquittal of the appellant entered on the count of murder in the indictment – whether a retrial can only be ordered if there is some other viable case based on the remainder of the evidence. Criminal Code (Qld) s 7, s 7(1)(b), s 7(1)(c), s 7(1)(d) Evidence Act 1977 (Qld) s 101 R v Coney (1882) 8 QBD 534, considered R v Jervis [1993] 1 Qd R 643, considered R v Oberbillig [1989] 1 Qd R 342, considered
COUNSEL:	A Rafter for the appellant S Bain for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent