R v Huston - [2017] QCA 121

SUPREME COURT OF QUEENSLAND

CITATION:

R v Huston [2017] QCA 121

PARTIES:

R
v
HUSTON, Ashley James
(appellant)

FILE NO/S:

CA No 103 of 2015
SC No 329 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 19 May 2015

DELIVERED ON:

9 June 2017

DELIVERED AT:

Brisbane

HEARING DATE:

23 February 2017

JUDGES:

Gotterson and McMurdo JJA and Boddice J
Judgment of the Court

ORDER:

1.   Leave to amend the notice of appeal in accordance with paragraph [1] of the Supplementary Submissions filed on behalf of the Appellant on 25 May 2017 be granted.

2.   The appeal be allowed and the conviction be set aside.

3.   The appellant be retried.

CATCHWORDS:

CRIMINAL LAW – GENERAL MATTERS – ANCILLARY LIABILITY – COMPLICITY – COMMON PURPOSE – PROBABLE CONSEQUENCE – where the appellant enlisted the help of a co-offender to rob the victim, a seller of the drug ice – where there was evidence that the appellant intended to assault the victim and rob him but did not intend to use a weapon – where there was evidence that the appellant told the co-offender not to bring a knife – where the co-offender nonetheless brought the knife and stabbed the victim, who ultimately died – where there was evidence that the appellant was upset and angry at his co-offender after the stabbing – where s 8 of the Criminal Code (Qld) extends criminal liability where two or more persons have a common intention to prosecute an unlawful purpose and the commission of an offence is a ‘probable consequence’ of that purpose – where the trial judge, in summing up, referred to the test under s 8 as requiring the offence to be a ‘likely’ consequence of the unlawful purpose, rather than a ‘probable consequence’ – where the trial judge nevertheless, on 24 occasions, referred to the correct test of ‘probable consequence’ – whether a miscarriage of justice occurred

CRIMINAL LAW – GENERAL MATTERS – ANCILLARY LIABILITY – COMPLICITY – COMMON PURPOSE – SCOPE OF AGREEMENT – where the trial judge correctly stated the requirements of s 8 Criminal Code (Qld) according to the Bench book direction and asked the jury to consider what the common intention to prosecute an unlawful purpose was, whether the offence of murder was committed in the prosecution of that purpose, and whether that offence was of such a nature that its commission was a probable consequence of the prosecution of that purpose – where there was a live issue between the prosecution and the defence about what the common unlawful purpose was – where the judge did not identify the evidence which had to be considered specifically on the question of what the common purpose was – where it was possible that the common intention had “prescribed a restriction” on the nature of the offence which the secondary offender was deemed to have committed because the jury may have concluded that the common purpose was…

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 Huston

Details

AGLC: R v Huston [2017] QCA 121
Case: [2017] QCA 121
Decision Date: 9 June 2017

CaseChat Overview and Summary

The appeal in R v Huston involved the appellant, who was convicted of the murder of a drug dealer, either as a principal or under the principles of complicity for acting in a common unlawful purpose. The key issue was whether the appellant’s involvement in a common purpose to rob the victim constituted complicity in the crime of murder. This hinged on whether the death of the victim was a probable consequence of the common unlawful purpose, as required under section 8 of the Criminal Code (Qld). The appellant argued that there was a miscarriage of justice due to the trial judge’s misdirection regarding the appropriate legal test for complicity.

The court examined the evidence presented at trial, which included the testimony of Moutsatsos, the appellant’s accomplice. She testified that the appellant intended to rob the victim of his drugs without resorting to the use of a weapon. The appellant had explicitly instructed Moutsatsos not to bring a knife, indicating that he did not intend to use a weapon. However, Moutsatsos's co-offender brought a knife and stabbed the victim, leading to his death. The court had to determine whether the trial judge’s directions to the jury correctly applied the law regarding complicity and whether the error led to a miscarriage of justice.

The court found that the trial judge misdirected the jury by incorrectly stating that the consequence must be “likely” rather than “probable.” Despite this, the judge correctly referred to the appropriate test on 24 occasions. The court also noted that the judge did not clearly direct the jury on the specific evidence to consider regarding the common unlawful purpose. The court concluded that it was reasonably possible that the jury may have found that the common purpose was limited to robbing the victim without the use of a weapon, and thus, the death of the victim was not a probable consequence of that purpose. Given the misdirection and the potential impact on the jury’s verdict, the court found a miscarriage of justice had occurred.

The court ordered the appeal to be allowed, the conviction to be set aside, and for the appellant to be retried. The court also granted leave to amend the notice of appeal to reflect the specific grounds argued.

Orders

Orders of the court

1. Leave to amend the notice of appeal in accordance with paragraph [1] of the Supplementary Submissions filed on behalf of the Appellant on 25 May 2017 be granted.

2. The appeal be allowed and the conviction be set aside.

3. The appellant be retried.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The case advanced at trial against the appellant was that he was guilty of the deceased’s murder either as a principal offender or, alternatively, on the basis that he actively participated in a common unlawful purpose to rob the deceased and that it was a probable consequence of that common unlawful purpose that the deceased would die from injuries inflicted with an intention to cause death or grievous bodily harm. Ultimately, it was the s 8 argument which was the Crown’s principal, if not only, argument.Evidence The principal witness in the Crown case was Moutsatsos. Moutsatsos gave evidence that she met the deceased about three weeks prior to his death. The deceased was a seller of the drug ice. Moutsatsos knew an acquaintance, Rebecca Wilson, had recently obtained drugs from the deceased. In the days prior to the deceased’s death Moutsatsos told the appellant that Wilson had obtained drugs from the deceased for $170, being money Wilson owed the appellant. Moutsatsos said the appellant was unhappy about this event. Moutsatsos said that on the evening of 12 June 2012, the appellant drove her to a house at Marsden. They watched a movie and smoked some of the drug ice together. Whilst there they had a conversation about acquiring more drugs. Moutsatsos said when she raised that the deceased might be able to assist, the appellant suggested she call the deceased. The appellant said he “would like to do him over for his gear”. The appellant explained that he would pretend to buy drugs from the deceased but take them from him without paying and if necessary “flog him”. The appellant asked Moutsatsos how big the deceased was before they left the house. Moutsatsos said they travelled to an ATM so that Moutsatsos could withdraw some money from her bank account. Whilst there, Moutsatsos telephoned the deceased on two occasions. An arrangement was made for the deceased to supply her with drugs in exchange for $400. The appellant told her to suggest to the deceased that her friend “Chris” would meet the deceased at a particular petrol station in about 20 minutes. The deceased agreed to meet “Chris” without Moutsatsos being present. Moutsatsos said the appellant and she settled upon the name “Chris” because the deceased knew money was owed to “an Ashley” and they did not want the deceased “to cotton on” that he was meeting the appellant. Moutsatsos said she later received a telephone call from the deceased who said it would be necessary for him to meet his dealer down the road from the petrol station. The deceased was enquiring whether “Chris” would be willing to pick the deceased up from the petrol station to drive him to the meeting with his dealer. Moutsatsos told the deceased that would be okay. Moutsatsos said she asked the appellant what he intended to do. The appellant told her he intended to ask the deceased if he could look at his “gear”. The appellant would then take it from the deceased, get into his car and drive away. Moutsatsos said the appellant, when asked what he would do if the deceased put up a fight, said “I’ll flog him if I have to at the worst case”.

Decision

Reasons for decision

For the respondent, it is argued that any directions or redirections which focused the minds of the jury on the intended level of violence would have been to the appellant’s disadvantage. That cannot be accepted. We have set out the relevant evidence which, taken as a whole, supported a finding that the common purpose was to use a level of violence which was lower than what would occur with the use of weapons and was restricted to such force as was necessary to overpower the deceased and steal the drugs. Had that been the jury’s finding, it is reasonably possible that the outcome may have been different.Conclusion and orders The appeal should be allowed upon the ground of a miscarriage of justice. We would order as follows:(1)Leave to amend the notice of appeal in accordance with paragraph [1] of the Supplementary Submissions filed on behalf of the Appellant on 25 May 2017 be granted.(2)The appeal be allowed and the conviction be set aside.(3)The appellant be retried.

Ratio Decidendi

Legal Principle Established

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CITATION:	R v Huston [2017] QCA 121
PARTIES:	R v HUSTON, Ashley James (appellant)
FILE NO/S:	CA No 103 of 2015 SC No 329 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Conviction: 19 May 2015
DELIVERED ON:	9 June 2017
DELIVERED AT:	Brisbane
HEARING DATE:	23 February 2017
JUDGES:	Gotterson and McMurdo JJA and Boddice J Judgment of the Court
ORDER:	1. Leave to amend the notice of appeal in accordance with paragraph [1] of the Supplementary Submissions filed on behalf of the Appellant on 25 May 2017 be granted. 2. The appeal be allowed and the conviction be set aside. 3. The appellant be retried.
CATCHWORDS:	CRIMINAL LAW – GENERAL MATTERS – ANCILLARY LIABILITY – COMPLICITY – COMMON PURPOSE – PROBABLE CONSEQUENCE – where the appellant enlisted the help of a co-offender to rob the victim, a seller of the drug ice – where there was evidence that the appellant intended to assault the victim and rob him but did not intend to use a weapon – where there was evidence that the appellant told the co-offender not to bring a knife – where the co-offender nonetheless brought the knife and stabbed the victim, who ultimately died – where there was evidence that the appellant was upset and angry at his co-offender after the stabbing – where s 8 of the Criminal Code (Qld) extends criminal liability where two or more persons have a common intention to prosecute an unlawful purpose and the commission of an offence is a ‘probable consequence’ of that purpose – where the trial judge, in summing up, referred to the test under s 8 as requiring the offence to be a ‘likely’ consequence of the unlawful purpose, rather than a ‘probable consequence’ – where the trial judge nevertheless, on 24 occasions, referred to the correct test of ‘probable consequence’ – whether a miscarriage of justice occurred CRIMINAL LAW – GENERAL MATTERS – ANCILLARY LIABILITY – COMPLICITY – COMMON PURPOSE – SCOPE OF AGREEMENT – where the trial judge correctly stated the requirements of s 8 Criminal Code (Qld) according to the Bench book direction and asked the jury to consider what the common intention to prosecute an unlawful purpose was, whether the offence of murder was committed in the prosecution of that purpose, and whether that offence was of such a nature that its commission was a probable consequence of the prosecution of that purpose – where there was a live issue between the prosecution and the defence about what the common unlawful purpose was – where the judge did not identify the evidence which had to be considered specifically on the question of what the common purpose was – where it was possible that the common intention had “prescribed a restriction” on the nature of the offence which the secondary offender was deemed to have committed because the jury may have concluded that the common purpose was…