R v Lui and Johnston - [2011] QCA 284

SUPREME COURT OF QUEENSLAND

CITATION:

R v Lui & Johnston [2011] QCA 284

PARTIES:

R
v
LUI, Malakai
(appellant)

R
v
JOHNSTON, Dustin
(appellant)

FILE NO/S:

CA No 252 of 2010
CA No 259 of 2010
SC No 1536 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Appeals against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

14 October 2011

DELIVERED AT:

Brisbane

HEARING DATE:

13 July 2011

JUDGES:

Muir and Fraser JJA and McMurdo J
Separate reasons for judgment of each member of the Court, Muir and Fraser JJA concurring as to the orders made, McMurdo J dissenting

ORDERS:

In CA No 252 of 2010:

1. Appeal dismissed

In CA No 259 of 2010:

1. Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – VERDICT AGAINST EVIDENCE OR WEIGHT OF EVIDENCE – VERDICT AGAINST WEIGHT OF EVIDENCE – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL OF NEW TRIAL – where the appellants were convicted of murder pursuant to s 302(1)(b) of the Criminal Code 1899 (Qld) – where the appellants planned to rob the deceased – where the deceased was tied up with an octopus strap secured around his neck and ankles pulling his head back towards his feet – where the deceased suffered from coronary atherosclerosis – where the appellants argued that the deceased’s death was caused by a heart attack unconnected with the use of the octopus strap – whether the prosecution proved beyond reasonable doubt that the deceased’s death was caused by an act done by the appellants in the commission of the robbery – whether the conviction was unsafe and unsatisfactory

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – CONSIDERATION OF SUMMING UP AS A WHOLE –where the appellants submitted that the primary judge failed to adequately deal with the cause of death of the deceased in his summing up – whether the primary judge erred in his summing up to the jury

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF PROSECUTION AND PROSECUTOR – where the appellants submitted that the primary judge erred in permitting the prosecution in its closing address to rely on heart attack as another cause of death – where the appellants argued that they were unfairly prejudiced by the broadening of particulars – whether the acts particularised by the prosecution were a substantial or significant cause of the deceased’s death – whether the trial judge erred in allowing the prosecution to mount an alternative case

Criminal Code 1899 (Qld), s 7, s 8, s 302(1)(b)

Campbell v R [1981] WAR 286, considered
Dawson v The Queen (1961) 106 CLR 1; [1961] HCA 74, cited
Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29, considered
R v Hallett [1969] SASR 141, cited
R v Hodgetts and Jackson [1990] 1 Qd R 456, cited
R v…

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 Lui and Johnston

Details

AGLC: R v Lui and Johnston [2011] QCA 284
Case: [2011] QCA 284
Decision Date: 14 October 2011

CaseChat Overview and Summary

In the matter of R v Lui and Johnston, the appellants were convicted of murder pursuant to section 302(1)(b) of the Criminal Code 1899 (Qld) following a planned robbery that resulted in the death of the deceased. The deceased was found tied up with an octopus strap, secured around his neck and ankles, which pulled his head back towards his feet. The deceased suffered from coronary atherosclerosis, and the appellants argued that his death was caused by a heart attack, not the use of the strap. The appellants sought a new trial on the basis that the conviction was unsafe and unsatisfactory, and that the prosecution failed to prove beyond reasonable doubt that the death was caused by an act done in the commission of the robbery.

The legal issues before the court involved whether the prosecution had proved beyond reasonable doubt that the deceased's death was caused by an act done by the appellants in the commission of the robbery. The appellants also argued that the primary judge failed to adequately address the cause of death in the summing up and erred in permitting the prosecution to rely on a heart attack as another cause of death. The appellants contended that the trial judge should not have allowed the prosecution to mount an alternative case, and that they were unfairly prejudiced by the broadening of particulars.

The court considered the arguments raised by the appellants and determined that the evidence presented was sufficient to prove that the death was caused by the acts of the appellants in the commission of the robbery. The court found that the primary judge had adequately addressed the cause of death in the summing up and did not err in permitting the prosecution to rely on a heart attack as another cause of death. The court concluded that the trial judge did not err in allowing the prosecution to mount an alternative case, and that the appellants were not unfairly prejudiced by the broadening of particulars.

The appeals were dismissed, and the convictions for murder were upheld.

Orders

Orders of the court

In CA No 252 of 2010:

1. Appeal dismissed

In CA No 259 of 2010:

1. Appeal dismissed

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Lui & Johnston [2011] QCA 284
PARTIES:	R v LUI, Malakai (appellant) R v JOHNSTON, Dustin (appellant)
FILE NO/S:	CA No 252 of 2010 CA No 259 of 2010 SC No 1536 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Appeals against Conviction
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	14 October 2011
DELIVERED AT:	Brisbane
HEARING DATE:	13 July 2011
JUDGES:	Muir and Fraser JJA and McMurdo J Separate reasons for judgment of each member of the Court, Muir and Fraser JJA concurring as to the orders made, McMurdo J dissenting
ORDERS:	In CA No 252 of 2010: 1. Appeal dismissed In CA No 259 of 2010: 1. Appeal dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – VERDICT AGAINST EVIDENCE OR WEIGHT OF EVIDENCE – VERDICT AGAINST WEIGHT OF EVIDENCE – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL OF NEW TRIAL – where the appellants were convicted of murder pursuant to s 302(1)(b) of the Criminal Code 1899 (Qld) – where the appellants planned to rob the deceased – where the deceased was tied up with an octopus strap secured around his neck and ankles pulling his head back towards his feet – where the deceased suffered from coronary atherosclerosis – where the appellants argued that the deceased’s death was caused by a heart attack unconnected with the use of the octopus strap – whether the prosecution proved beyond reasonable doubt that the deceased’s death was caused by an act done by the appellants in the commission of the robbery – whether the conviction was unsafe and unsatisfactory CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – CONSIDERATION OF SUMMING UP AS A WHOLE –where the appellants submitted that the primary judge failed to adequately deal with the cause of death of the deceased in his summing up – whether the primary judge erred in his summing up to the jury CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF PROSECUTION AND PROSECUTOR – where the appellants submitted that the primary judge erred in permitting the prosecution in its closing address to rely on heart attack as another cause of death – where the appellants argued that they were unfairly prejudiced by the broadening of particulars – whether the acts particularised by the prosecution were a substantial or significant cause of the deceased’s death – whether the trial judge erred in allowing the prosecution to mount an alternative case Criminal Code 1899 (Qld), s 7, s 8, s 302(1)(b) Campbell v R [1981] WAR 286, considered Dawson v The Queen (1961) 106 CLR 1; [1961] HCA 74, cited Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29, considered R v Hallett [1969] SASR 141, cited R v Hodgetts and Jackson [1990] 1 Qd R 456, cited R v…