R v Nesbitt - [2004] QCA 333

SUPREME COURT OF QUEENSLAND

CITATION:

R v Nesbitt [2004] QCA 333

PARTIES:

R
v
NESBITT, Peter Donald

(appellant/applicant)

FILE NO/S:

CA No 134 of 2004

DC No 82 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against conviction and sentence

ORIGINATING COURT:

District Court at Toowoomba

DELIVERED ON:

17 September 2004

DELIVERED AT:

Brisbane

HEARING DATE:

2 September 2004

JUDGES:

McPherson JA, Williams JA, Holmes J

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

ORDERS:

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW – VERDICT – INCONSISTENT VERDICTS – PARTICULAR CASES – PROPERTY OFFENCES – whether it was open to jury to convict the appellant of wilful damage after acquitting him of the alternative verdict of arson

Criminal Code 1899 (Qld) , s 7

R v Barlow (1997) 188 CLR 1, applied
R v Jervis [1993] 1 Qd R 643, cited
R v Zischke [1983] 1 Qd R 240, applied
West v Perrier; ex p Perrier [1962] QWN 5, cited

COUNSEL:

M J Griffin SC for the appellant

R G Martin for the respondent

SOLICITORS:

Gilshenan & Luton for the appellant
Director of Public Prosecutions (Queensland) for the respondent

McPHERSON JA: The appellant Peter Nesbitt was charged on indictment in the District Court at Toowoomba with five counts of offences under the Criminal Code. Count 1 charged that between 1 July and 11 October 2001, he stalked the complainant Leanne King, with the circumstance of aggravation that he used violence against her property, which was a Holden Commodore sedan; count 2, that on 18 September 2001, he wilfully set fire to that motor vehicle; or, in the alternative, count 3, that he wilfully damaged it; count 4, that between 20 and 25 September 2001, he attempted to set fire to the same motor vehicle; and count 5, that on 5 October 2001, he set fire to another motor vehicle, which was a black Ford utility belonging to Mrs King’s ex-husband Thomas King. Each of the offences was alleged to have been committed in Toowoomba, where Mrs King was living at the time.

The jury found the appellant guilty of count 1 (stalking) with the aggravating circumstance of using violence against her car, and also of the alternative count 3 (damaging a motor vehicle); but not guilty of the arson counts 2, 4 and 5. He was convicted and sentenced to imprisonment for 18 months, against which he now seeks leave to appeal. The appeal against conviction is based principally on two grounds, the first being that, having found verdicts of not guilty on each of the counts of arson charged in counts 2, 4 and 5, the jury could not, consistently with the way they were directed by the trial judge, have found the appellant guilty of count 1 with the circumstance of aggravation there alleged. The second is that, having regard to the Crown evidence at trial, the jury could…

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 Nesbitt

Details

AGLC: R v Nesbitt [2004] QCA 333
Case: [2004] QCA 333
Decision Date: 17 September 2004

CaseChat Overview and Summary

The appeal before the court involved the appellant, Nesbitt, who was found guilty of wilful damage by a jury but acquitted of the alternative charge of arson. The appellant sought to overturn his conviction, arguing that the jury's decision was inconsistent. The court was tasked with determining whether the jury's verdict was open to them under the circumstances. The case highlighted the complexities that can arise in criminal trials when multiple charges are considered, particularly when one charge is a lesser-included offence of the other.

The primary legal issue was whether it was legally permissible for the jury to convict the appellant of wilful damage while acquitting him of the charge of arson, which was an alternative to the wilful damage charge. The court examined the legal principles surrounding inconsistent verdicts and whether the jury could rationally acquit the appellant of arson while convicting him of wilful damage. This required a detailed analysis of the evidence presented and the legal standards applicable to jury verdicts in criminal cases.

The court concluded that the jury's decision to convict the appellant of wilful damage while acquitting him of arson was within their legal authority. The jury could have reasonably believed that the appellant was guilty of wilful damage but not of the more serious charge of arson. The evidence allowed for this nuanced interpretation, and the jury's decision was not inherently inconsistent. The court found no error in the trial judge's direction to the jury on this matter and dismissed the appeal against conviction. The appellant's application for leave to appeal against his sentence was also dismissed.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence 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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Nesbitt [2004] QCA 333
PARTIES:	R v NESBITT, Peter Donald (appellant/applicant)
FILE NO/S:	CA No 134 of 2004 DC No 82 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against conviction and sentence
ORIGINATING COURT:	District Court at Toowoomba
DELIVERED ON:	17 September 2004
DELIVERED AT:	Brisbane
HEARING DATE:	2 September 2004
JUDGES:	McPherson JA, Williams JA, Holmes J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal against conviction dismissed 2. Application for leave to appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW – VERDICT – INCONSISTENT VERDICTS – PARTICULAR CASES – PROPERTY OFFENCES – whether it was open to jury to convict the appellant of wilful damage after acquitting him of the alternative verdict of arson Criminal Code 1899 (Qld) , s 7 R v Barlow (1997) 188 CLR 1, applied R v Jervis [1993] 1 Qd R 643, cited R v Zischke [1983] 1 Qd R 240, applied West v Perrier; ex p Perrier [1962] QWN 5, cited
COUNSEL:	M J Griffin SC for the appellant R G Martin for the respondent
SOLICITORS:	Gilshenan & Luton for the appellant Director of Public Prosecutions (Queensland) for the respondent