R v Murray - [1999] QCA 341

IN THE COURT OF APPEAL	[1999] QCA 341
SUPREME COURT OF QUEENSLAND

CA No 491 of 1998

Brisbane

[R v Murray]

T H E Q U E E N

WILLIAM JOHN MURRAY

Appellant

McMurdo P
McPherson JA
Atkinson J

Judgment delivered 24 August 1999

Joint reasons for judgment of McMurdo P and Atkinson J, McPherson JA dissenting.

APPEAL AGAINST CONVICTION DISMISSED.

CATCHWORDS: CRIMINAL LAW - JURISDICTION - PRACTICE AND PROCEDURE - SUMMING UP - Whether inadequate direction given in relation to the possibility that the act occurred independently of the exercise of the will of the appellant - Section 23(1)(a) Criminal Code

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NONDIRECTION - CONSIDERATION OF SUMMING UP AS A WHOLE - Section 23(1)(a) Criminal Code - Whether trial judge inadvertently reversed onus of proof
Charlie v The Queen (1999) 73 ALJR 809
Gipp v The Queen (1998) 72 ALJR 1012; [1998] HCA 21
Griffiths v The Queen (1994) 69 ALJR 77
Kaporonowski v The Queen (1973) 133 CLR 209
R v CBR [1992] 1 Qd R 637
R v Mullen (1938) 59 CLR 124
The Queen v Falconer (1990) 171 CLR 30

Counsel:	Mr G Long for the appellant Mr D Meredith for the respondent
Solicitors:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent
Hearing Date:	7 May 1999

REASONS FOR JUDGMENT - McPHERSON JA

Judgment delivered 24 August 1999

The appellant, who was found guilty at his trial in the Supreme Court at Brisbane, appeals against his conviction on a charge under s302(1)(a) of the Criminal Code of murdering Tony Celap at Yarraman on 18 August 1997. The notice of appeal sets out a total of some 10 or more grounds, but at the hearing before this Court the appeal was confined to only one of those specified in para.9. It is that:
"Cardinal lines of defence had been placed before the jury, but had not been referred to in the summing up. In particular s271 self defence; s267 defence of a dwelling; s23 independence of will/accident".

Of these matters, only the last was relied upon in this Court; that is to say, that the act which killed the deceased Celap occurred independently of the will of the appellant. It may be remarked at the outset that, in relation to murder, it was not a matter relied on or referred to by the defence at the trial either in addressing the jury or in any application for redirections after the summing up. Counsel for the defence did not contest the suggestion from the Crown that a direction on s23(1)(a) of the Criminal Code was not called for. However, on appeal it was conceded by the Crown that the summing up was inadequate or defective in that particular; but it was submitted that the conviction should be allowed to stand in the exercise of the power conferred by s668E(1A).

The prosecution evidence is that Celap, who was a…

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 Murray

Details

AGLC: R v Murray [1999] QCA 341
Case: [1999] QCA 341
Decision Date: 24/08/1999

CaseChat Overview and Summary

The appellant, William John Murray, appeals against his conviction for the murder of Tony Celap. The Court of Appeal was asked to consider whether the trial judge's summing up was inadequate in failing to address the possibility that the act that caused Celap's death occurred independently of the exercise of the appellant's will, as provided for in section 23(1)(a) of the Criminal Code. Additionally, the Court considered whether the summing up inadvertently reversed the onus of proof on the appellant. The Crown conceded that the summing up was inadequate but argued that the conviction should stand under the discretionary power in section 668E(1A). The Court found that the trial judge's summing up contained an error in the allocation of the burden of proof, which could have deprived the appellant of a fair opportunity for acquittal. Consequently, the appeal was allowed, the conviction and verdict were set aside, and a new trial was ordered.

Orders