R v Kirkby

Case [1998] QCA 445
IN THE COURT OF APPEAL [1998] QCA 445
SUPREME COURT OF QUEENSLAND

CA No 223 of 1998

Brisbane

[R v Kirkby]

THE QUEEN

v

GREGORY REX KIRKBY

Appellant

McMurdo P Thomas JA Jones J

Judgment delivered 22 December 1998

Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

APPEAL AGAINST CONVICTION ALLOWED. VERDICT BELOW SET ASIDE.

NEW TRIAL ORDERED.

CATCHWORDS: 

CRIMINAL LAW - parties to criminal offence - principal offender under s7(1)(d) Criminal Code - accessory procuring another to commit offence - grievous bodily harm

CRIMINAL LAW - evidence - certificate of conviction of accomplice tendered at trial under s53 Evidence Act 1977 - accomplice not called by Crown to give evidence - accomplice not available for cross-examination by defence counsel - whether law permits proof in criminal proceedings of material fact by means of a certificate of conviciton of a third person in proceeding to which the accused was not a party - rule in Hollington v F. Hewthorn & Co. [1943] 1 KB 587 - exception to rule in R v Carter and Savage; ex parte Attorney-General [1990] 2 QdR 371 discussed - whether exception in the case of accessories extends to include offenders under ss7(1)(b), 7(1)(c), 7(1)(d) Criminal Code - R v Hutton (1991) 56 ACrimR 211 overruled

Carter and Savage; ex parte Attorney-General [1990] 2 QdR 371
Connell v R (No.6) (1992) 12 WAR 133
Cook v Field (1788) 170 ER 564
Hollington v F. Hewthorn & Co. [1943] 1 KB 587
R v Bartorillo & Bartorillo (CA Nos 161 and 163 of 1996, 11
October 1996)
R v Blick (1830) 172 ER 747
R v Cowell (1987) 24 ACrimR 47
R v Dawson [1961] VR 773
R v Hutton (1991) 56 ACrimR 211
R v Kempster [1989] 1 WLR 1125
R v Moore (1956) 40 CrAppR 50
R v O’Connor (1986) 85 CrAppR 298
R v Prosser (1784) 168 ER 247
R v Robertson [1987] QB 920
R v Smith (1783) 168 ER 247
R v Turner (1832) 168 ER 1298
Rompotis v R (1996) 18 WAR 54

Sir Michael Foster, A Report of Some Proceedings on the Commission for the Trial of the Rebels in the Year 1746, in the County of Surry; and of other Crown Cases: to which are added Discourses Upon a Few Branches of the Crown Law (1809), 3 ed.

Evidence Act 1977
Counsel:  Mr A Glynn SC for the appellant
Mrs L Clare for the respondent
Solicitors:  Baker Johnson for the appellant
Director of Public Prosecutions (Queensland) for the respondent
Hearing Date:  13 October 1998

REASONS FOR JUDGMENT - McMURDO P

Judgment delivered 22 December 1998

  1. The appellant was convicted in the District Court at Southport on 12 June 1998 of unlawfully doing grievous bodily harm to Raymond George Randell on 6 May 1988.

  2. The Crown alleged that the appellant was a principal offender under s 7(1)(d) of the Criminal Code, claiming that he procured another co-accused, Vogler to organise an…

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R v Kirkby [1998] QCA 445
Case
[1998] QCA 445
Decision Date

CaseChat Overview and Summary

In the case of R v Kirkby, the appellant was charged under section 7(1)(d) of the Criminal Code with procuring another to commit an offence of grievous bodily harm. The appeal against conviction and sentence concerned the admissibility of evidence of a third party's conviction of official corruption, and the misdirection of the trial judge regarding the elements of the offence of procuring another to commit an offence of grievous bodily harm.

The legal issues before the court were whether the evidence of the conviction of a third party was admissible in the trial of the appellant and whether the trial judge misdirected the jury on the elements required to establish the offence of procuring another to commit grievous bodily harm. The court had to determine if the evidence of the third party's conviction was relevant and necessary to prove the elements of the offence charged against the appellant, and if the trial judge correctly instructed the jury on the necessary elements to establish the offence.

The Court found that the evidence of the third party's conviction was not admissible as it had no probative value and only served to prejudice the defence case. The court held that the conviction of the third party did not necessarily follow that the appellant was an accomplice, and that the evidence was not necessary to prove the elements of the offence charged against the appellant. The Court also held that the trial judge misdirected the jury on the elements required to establish the offence of procuring another to commit grievous bodily harm. The Court held that to establish the offence of procuring another to commit grievous bodily harm, it was necessary to show that the appellant knowingly procured Vogler to do grievous bodily harm to Randell, and that as a result of this procuring, Randell suffered grievous bodily harm.

The court quashed the conviction and ordered a retrial. The Court held that the evidence of the third party's conviction was not admissible and had no probative value. The Court also held that the trial judge misdirected the jury on the elements required to establish the offence of procuring another to commit grievous bodily harm. The Court quashed the conviction and ordered a retrial, finding that the appellant lost the chance of an acquittal due to the misdirection of the trial judge.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Court distinguished its decision in Connell which was limited to the unusual nature of the case and the conduct of the trial, noting: “Where there is no dispute that a person is an accomplice it does not follow that the fact of a conviction of the accomplice of the offences is necessarily admissible.”[46] and “In the circumstances of this particular case, the evidence that Mr Allen had been charged and dealt with in respect of the 20 counts of official corruption was completely irrelevant. It was not a question whether the prejudicial effect of the evidence outweighed its probative value. The evidence had no probative value. It only had a prejudicial effect. It was no part of the material which was necessary to put before the jury. The position might have been different if there had been any attack by the defence on the credibility of Mr Allen as a witness. There was not. ... [B]y allowing the evidence to be given as part of the Crown case, the learned trial judge allowed the Crown to lead evidence which would inevitably prejudice the defence case.”[47] The Court held that as a result the trial had miscarried in a significant way with the result that the appellant lost the chance of an acquittal. [46] (1996) 18 WAR 54, 64. [47] (1996) 18 WAR 54, 65. Conclusion In order to prove a charge of accessory after the fact, the following elements must be established: (a) the accused received or assisted another in order to enable that other to escape punishment; (b) that the other was then guilty of an offence; and (c) that the accused then knew the other had been guilty of an offence.[48] By way of contrast, to establish the guilt of the appellant in this case, it was necessary to show that he: (a) knowingly; (b) procured Vogler to do grievous bodily harm to Randell; and (c) that as a result of this procuring, Randell suffered grievous bodily harm on 6 May 1988 at Gold Coast. Whilst the Crown case was that Bonner actually inflicted the grievous bodily harm, this was not an element which the Crown had to prove. This contrasts with the elements to be proved to establish the offence of accessory after the fact. [48] R v Carter and Savage [1990] 2 QdR 371, 378. The long established general rule is that the conviction for an offence of a third party is not admissible against an accused person at trial.[49] One exception to that rule seems to be that on a trial of an accessory after the fact, proof of the conviction of the actual offender is admissible to prove an element of the offence.[50] Once the evidence of the conviction is admissible, s 53 of the Act permits a certificate of conviction to be tendered. [49] R v Moore (1956) 40 CrAppR 50, 54. [50] R v Carter and Savage; ex parte A-G [1990] 2 QdR 371. The only authorities suggesting that evidence of the conviction of the actual offender can be given at a trial of a co-accused charged under s 7(1)(a), (b), (c) or (d) of the Criminal Code are the equivocal comments in 1809 by Michael Foster in Discourses Upon a Few Branches of the Crown Law; and R v Cook and Field in 1788[51] cited in Dawson,[52] Carter and Savage;[53] and Hutton;54 R v Prosser55 reported in a very short note of eight lines referring to a single judge decision in 1784 and obiter in Bartorillo.56 As Thomas JA points out, it seems likely the effect of the old cases was altered by Hollington v Hewthorn. [51] 3 Esp 132; 170 ER 564. [52] [1961] VR 773. [53] [1990] 2 QdR 371.

Ratio Decidendi

Legal Principle Established

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