R v Guillard - [2002] QCA 27

SUPREME COURT OF QUEENSLAND

CITATION:

R v Guillard [2002] QCA 27

PARTIES:

R
v
GUILLARD, Mark Anthony
(appellant)

FILE NO/S:

CA No 247 of 2001
SC No 252 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

19 February 2002

DELIVERED AT:

Brisbane

HEARING DATE:

8 February 2002

JUDGES:

McMurdo P, Thomas JA, Ambrose J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – MANSLAUGHTER – appellant convicted of manslaughter – circumstantial case – no body recovered

CRIMINAL LAW – DEFENCE MATTERS – ACCIDENT – GENERALLY – whether defence of accident open on the evidence – whether directions on accident necessary – where issue only arises when there is evidence to suggest that there was a reasonable possibility that the injury occurred by accident – R v Taiters distinguished

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – MISCARRIAGE OF JUSTICE – UNSAFE OR UNSATISFACTORY VERDICT – WHERE EVIDENCE CIRCUMSTANTIAL – where evidence against appellant included a number of unrecorded confessional statements to a Crown witness – whether witness unreliable – where jury directed to scrutinise his evidence carefully – where strong circumstantial case

Criminal Code (Qld), s 23(1)(b)

R v Bojovic [2000] 2 Qd R 183, referred to
R v Griffiths (1994) 69 ALJR 77, distinguished
R v Grimley [2000] QCA 64, CA No 362 of 1999, 14 March 2000, applied
R v Taiters, ex parte Attorney-General [1997] 1 Qd R 333, distinguished

COUNSEL:

A J Rafter for the appellant
C W Heaton for the respondent

SOLICITORS:

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

McMURDO P: I agree with the reasons for judgment of Thomas JA and with the order proposed.

THOMAS JA: On his trial for murder in the Supreme Court at Cairns the appellant was acquitted of murder and convicted of manslaughter.

He appeals against that conviction on two grounds:

1. A miscarriage of justice has resulted by reason of the trial judge’s failure to direct the jury in accordance with s 23(1)(b) of the Criminal Code.

2. The verdict is unsafe and unsatisfactory.

The deceased (Carl Thygesen) was 70 years of age and the appellant 35. During the six months prior to the deceased’s disappearance around 10 April 1999 the appellant resided with Thygesen at Thygesen’s residence at 3 Skull Road, White Rock. Thygesen had lived there for 18 years.

The last known contact Thygesen had with any person was at 1.05 p.m. on Saturday 10 April 1999 when he telephoned his brother’s residence and spoke briefly to his nephew. He was a person with regular habits and the last sighting of him had been shortly before then at the Earlville Shopping Centre. No transactions were conducted on his bank account after 9 April 1999 when a small amount had…

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 Guillard

Details

AGLC: R v Guillard [2002] QCA 27
Case: [2002] QCA 27
Decision Date: 19 February 2002

CaseChat Overview and Summary

The appellant was convicted of manslaughter and appealed to the High Court against his conviction. The deceased was last seen alive in the company of the appellant, and the only evidence against the appellant was circumstantial. The deceased’s body was never recovered, and the appellant had no direct connection to the deceased’s death. The appellant argued that the jury should have been directed to consider the possibility that the deceased had died accidentally.

The court was required to determine whether the trial judge was correct in concluding that there was no evidence to warrant the direction of the jury on the possibility of accidental death. The court had to consider whether the defence of accident was available on the evidence, and whether there was a miscarriage of justice in the trial judge’s direction to the jury to scrutinise the evidence of the Crown witness carefully.

The court found that the defence of accident was not open on the evidence, as there was no reasonable possibility that the deceased’s death occurred accidentally. The court held that the directions given to the jury by the trial judge were appropriate, and that there was no miscarriage of justice in the verdict. The court distinguished the case from R v Taiters, where the possibility of accidental death was raised by the evidence. The court held that the trial judge was correct in concluding that the evidence was circumstantial and that the jury had been properly directed to consider the reliability of the Crown witness. The court dismissed the appeal.

The appeal was dismissed, and the conviction of the appellant for manslaughter was upheld.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Guillard [2002] QCA 27
PARTIES:	R v GUILLARD, Mark Anthony (appellant)
FILE NO/S:	CA No 247 of 2001 SC No 252 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	19 February 2002
DELIVERED AT:	Brisbane
HEARING DATE:	8 February 2002
JUDGES:	McMurdo P, Thomas JA, Ambrose J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – MANSLAUGHTER – appellant convicted of manslaughter – circumstantial case – no body recovered CRIMINAL LAW – DEFENCE MATTERS – ACCIDENT – GENERALLY – whether defence of accident open on the evidence – whether directions on accident necessary – where issue only arises when there is evidence to suggest that there was a reasonable possibility that the injury occurred by accident – R v Taiters distinguished CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – MISCARRIAGE OF JUSTICE – UNSAFE OR UNSATISFACTORY VERDICT – WHERE EVIDENCE CIRCUMSTANTIAL – where evidence against appellant included a number of unrecorded confessional statements to a Crown witness – whether witness unreliable – where jury directed to scrutinise his evidence carefully – where strong circumstantial case Criminal Code (Qld), s 23(1)(b) R v Bojovic [2000] 2 Qd R 183, referred to R v Griffiths (1994) 69 ALJR 77, distinguished R v Grimley [2000] QCA 64, CA No 362 of 1999, 14 March 2000, applied R v Taiters, ex parte Attorney-General [1997] 1 Qd R 333, distinguished
COUNSEL:	A J Rafter for the appellant C W Heaton for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent