R v Morrison - [2001] QCA 184

SUPREME COURT OF QUEENSLAND

CITATION: R v Morrison [2001] QCA 184

PARTIES: R
v
MORRISON, Neil

FILE NO/S: CA No 150 of 2000
SC No 29 of 2000

DIVISION: Court of Appeal

PROCEEDING: Appeal against conviction

ORIGINATING COURT:
Supreme Court at Brisbane

DELIVERED ON: 17 May 2001

DELIVERED AT: Brisbane

HEARING DATE: 3 May 2001

JUDGES: McPherson and Thomas JJA, Chesterman J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: Appeal against conviction dismissed

CATCHWORDS:
CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – HOMICIDE – MURDER – INTENTIONAL MURDER

APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – FRESH EVIDENCE – NATURE AND PROBABLE EFFECT OF EVIDENCE – whether new evidence would support a claim that the appellant was suffering from an underlying condition that disabled him from using his right arm.

APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – MISCONDUCT OF COUNSEL – IN GENERAL – whether appellant's counsel failed to properly investigate evidence regarding the difficulties experienced by the appellant in using his right hand

APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT INVOLVING MISCARRIAGE – WHERE RESULT OF TRIAL NOT AFFECTED

Pfennig v The Queen (1995) 182 CLR 461, considered
Ratten v The Queen [1972] AC 378, applied

R v Hasler; ex parte Attorney-General [1987] 1 Qd R 239, considered

COUNSEL: D J Murray for the appellant
C Heaton for the respondent

SOLICITORS: Forest Lake Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

McPHERSON JA: The appellant was convicted at a trial in May last year of the murder of John Adadzynski (or John Ski, as he was known) and Jacqueline Leyden on 3 February 1999 at the Gold Coast. They were found either in or near a lounge or family room in the downstairs level of unit 2 at 45 Woodroffe Avenue, Main Beach. Their throats had been cut and they were dead or dying.

The unit, which was divided into an upper and a lower level, was occupied by Mr Brendan Washington and Mrs Washington as their home. They lived on the lower level and their son Angus lived on the upper level. At the time in question, which was after 9 pm, they were out, but Angus was entertaining his girlfriend and fellow student, Ms Ying Ang, upstairs. They both heard angry shouting coming from the level below. Angus Washington said he heard a male voice, which he claimed to recognise as that of the appellant Neil Morrison shout "You dirty dog". He ran downstairs and found the two dying victims there. They were surrounded by blood, groaning and unable to speak. Angus called out to Ms Ang to go down and telephone the emergency number.

She ran downstairs intending to go to the Felix restaurant next door. When she came…

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 Morrison

Details

AGLC: R v Morrison [2001] QCA 184
Case: [2001] QCA 184
Decision Date: 17 May 2001

CaseChat Overview and Summary

In the case of R v Morrison, the appellant, who was convicted of murder, appealed against his conviction. The central issue in this appeal was whether new evidence that the appellant had an underlying condition affecting his right arm could have influenced the trial's outcome. Additionally, the court examined whether the appellant's legal counsel had properly investigated evidence regarding the appellant's difficulties with his right hand. The appeal also addressed whether any misconduct by the appellant's counsel constituted a miscarriage of justice, and if the result of the trial was unaffected by such issues.

The court assessed the fresh evidence presented, considering whether it was of a nature that, if known at the time of the trial, could have led to a different verdict. The court also evaluated whether the appellant's counsel had acted appropriately in investigating and presenting evidence related to the appellant's physical condition. The court considered whether any failure by the appellant's counsel amounted to a miscarriage of justice and whether this affected the outcome of the trial.

After thorough consideration, the court found that the new evidence regarding the appellant's condition did not support a claim that it would have altered the trial's result. The court also determined that the appellant's counsel had not mishandled the investigation of the evidence about the appellant's right hand difficulties. Consequently, the court concluded that any alleged misconduct by counsel did not amount to a miscarriage of justice, and the result of the trial remained unaffected by these issues. In light of these findings, the appeal against the conviction was dismissed.

Orders

Orders of the court

Appeal against conviction dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Morrison [2001] QCA 184
PARTIES:	R v MORRISON, Neil
FILE NO/S:	CA No 150 of 2000 SC No 29 of 2000
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against conviction
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	17 May 2001
DELIVERED AT:	Brisbane
HEARING DATE:	3 May 2001
JUDGES:	McPherson and Thomas JJA, Chesterman J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal against conviction dismissed
CATCHWORDS:	CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – HOMICIDE – MURDER – INTENTIONAL MURDER APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – FRESH EVIDENCE – NATURE AND PROBABLE EFFECT OF EVIDENCE – whether new evidence would support a claim that the appellant was suffering from an underlying condition that disabled him from using his right arm. APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – MISCONDUCT OF COUNSEL – IN GENERAL – whether appellant's counsel failed to properly investigate evidence regarding the difficulties experienced by the appellant in using his right hand APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT INVOLVING MISCARRIAGE – WHERE RESULT OF TRIAL NOT AFFECTED Pfennig v The Queen (1995) 182 CLR 461, considered Ratten v The Queen [1972] AC 378, applied R v Hasler; ex parte Attorney-General [1987] 1 Qd R 239, considered
COUNSEL:	D J Murray for the appellant C Heaton for the respondent
SOLICITORS:	Forest Lake Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent