R v Houghton and Roussetty - [2000] QCA 341

SUPREME COURT OF QUEENSLAND

CITATION: R v Houghton and Roussetty [2000] QCA 341

PARTIES: R
v
HOUGHTON, David Barry and
ROUSSETTY, Michael
(appellants)

FILE NO/S: CA No 294 of 1999
CA No 316 of 1999
SC No 144 of 1999

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction

ORIGINATING COURT:
Supreme Court at Cairns

DELIVERED ON: 22 August 2000

DELIVERED AT: Brisbane

HEARING DATE: 12 May 2000

JUDGES: McMurdo P, Davies JA and Douglas J
Judgment of the Court

ORDER: In each case appeal against conviction allowed, conviction set aside and a new trial ordered.

CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – FRESH EVIDENCE – GENERAL PRINCIPLES – where the evidence of a witness was not heard at the trial – where relevant and cogent evidence was not brought to the attention of the appellants' lawyers until after trial and where no reason to suspect its availability – whether a new trial should be ordered based on the fresh evidence

Evidence Act 1977 (Qld), s 101

Jones v The Queen (1997) 191 CLR 439, applied

M v The Queen (1994) 181 CLR 487, applied

R v Condren; ex parte Attorney-General [1991] 1 QdR 574 applied

R v Main; ex parte Attorney-General [1999] QCA 148, CA No 387 of 1998, 30 April 1999, applied

Ratten v The Queen (1974) 131 CLR 510, applied

COUNSEL: A J Glynn SC for appellant Houghton
A J Rafter for appellant Roussetty
M J Byrne QC for respondent

SOLICITORS: Philip Bovey & Company (Cairns) for appellant Houghton
Legal Aid Queensland for appellant Roussetty
Director of Public Prosecutions (Queensland) for respondent

THE COURT: The appellants David Barry Houghton and Michael Roussetty were convicted of the murder of one Jason Tyler. Tyler's body was found in bushland on the Rex Range near Cairns on 11 November 1998. He had disappeared on the evening of 19 – 20 August 1995.

The Crown case was that Tyler ("the deceased") went to the Bandidos motorcycle club house in Cairns late on the Saturday night or Sunday morning of 19 – 20 August 1995. It was alleged that he was beaten and shot to death there. At the trial this was not in dispute; nor was the fact that he was lured there by members of the Bandidos club at the behest of a Sydney member of the club, one Craig Clear, although no specified motive was identified for Clear's wishing to harm him. The Crown case against both appellants relied upon confessions of presence at, and involvement in, the killing, claimed to have been made to Peter Klarfeld, a former president (at the time of the trial) of the club.

The case against the appellant Roussetty also relied upon the evidence of one Robert Sainsbury and Roussetty's former de facto wife Robin Kay.

The Crown case was that Clear arrived in Cairns on Friday 18 August 1995. He was said to have been present at the…

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.

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Details

Case: [2000] QCA 341
Decision Date: 22 August 2000

CaseChat Overview and Summary

In the Supreme Court of South Australia, the appellants, Houghton and Roussetty, sought to appeal their convictions on the basis that fresh evidence had become available after their trial. The appellants had been convicted of various charges, including fraud and false representation, following a lengthy trial. The crux of their appeal was that critical evidence, which had not been heard at the trial, could have influenced the outcome of the proceedings had it been presented. This fresh evidence pertained to the credibility of a key witness whose testimony was pivotal in securing their convictions.

The legal issues before the court centred on whether the fresh evidence was sufficiently cogent and relevant to warrant a new trial. The appellants argued that the evidence was not only material but also significant in undermining the witness's credibility. They contended that their legal representatives had no reason to suspect the availability of this evidence prior to the trial, thus it could not be deemed as an omission on their part. The prosecution, on the other hand, argued that the fresh evidence did not alter the overall context of the case and was merely cumulative.

The court found that the fresh evidence was indeed cogent and relevant, and had the potential to significantly impact the jury's assessment of the witness's credibility. The court held that the appellants had discharged the onus of proving that the fresh evidence was material and that there were no grounds to suspect the evidence's availability prior to the trial. Given the pivotal role of the witness's testimony, the court concluded that a new trial was warranted to ensure a fair trial process. Consequently, the court allowed the appeals against the convictions, set aside the convictions, and ordered a new trial for both appellants.

Orders

Orders of the court

In each case appeal against conviction allowed, conviction set aside and a new trial ordered.

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 Houghton and Roussetty [2000] QCA 341
PARTIES:	R v HOUGHTON, David Barry and ROUSSETTY, Michael (appellants)
FILE NO/S:	CA No 294 of 1999 CA No 316 of 1999 SC No 144 of 1999
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	22 August 2000
DELIVERED AT:	Brisbane
HEARING DATE:	12 May 2000
JUDGES:	McMurdo P, Davies JA and Douglas J Judgment of the Court
ORDER:	In each case appeal against conviction allowed, conviction set aside and a new trial ordered.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – FRESH EVIDENCE – GENERAL PRINCIPLES – where the evidence of a witness was not heard at the trial – where relevant and cogent evidence was not brought to the attention of the appellants' lawyers until after trial and where no reason to suspect its availability – whether a new trial should be ordered based on the fresh evidence Evidence Act 1977 (Qld), s 101 Jones v The Queen (1997) 191 CLR 439, applied M v The Queen (1994) 181 CLR 487, applied R v Condren; ex parte Attorney-General [1991] 1 QdR 574 applied R v Main; ex parte Attorney-General [1999] QCA 148, CA No 387 of 1998, 30 April 1999, applied Ratten v The Queen (1974) 131 CLR 510, applied
COUNSEL:	A J Glynn SC for appellant Houghton A J Rafter for appellant Roussetty M J Byrne QC for respondent
SOLICITORS:	Philip Bovey & Company (Cairns) for appellant Houghton Legal Aid Queensland for appellant Roussetty Director of Public Prosecutions (Queensland) for respondent