R v O'Brien - [1999] QCA 216

IN THE COURT OF APPEAL	[1999] QCA 216
SUPREME COURT OF QUEENSLAND

C.A. No. 469 of 1998

Brisbane

[R v. O'Brien]

THE QUEEN

RICHARD GEORGE O'BRIEN

Appellant

McMurdo P
Pincus JA
Muir J

Judgment delivered 11 June 1999

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

APPEAL ALLOWED. CONVICTION SET ASIDE. RETRIAL ORDERED.

CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - unreasonable or insupportable verdict -
conviction for murder - whether Crown adequately established that fatal injuries were caused during particular time period
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS -
corroboration - direction of jury - use of lies as corroborative evidence - need to identify particular lie or lies in direction to jury
*Edwards* (1993) 178 CLR 193 *Zheng* (1995) 83 A Crim R 572
Counsel:	Mr G Long for the appellant Mr T Moynihan for the respondent
Solicitors:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent
Hearing Date:	26 March 1999

REASONS FOR JUDGMENT - McMURDO P

Judgment delivered 11 June 1999

I have had the advantage of reading the reasons for judgment of Pincus JA who has set out the grounds of appeal.
The Crown case was that the appellant inflicted fatal blows upon the deceased, his de facto, when they were alone in the house between 12.35 pm (the time when the deceased saw Nurse McKenna at the Aurukun hospital) and about 3 pm (the time when the appellant went to the police knowing the deceased was dead). The extent of the serious injuries suffered by the deceased have been sufficiently outlined by Pincus JA. At 12.35 pm Nurse McKenna did not notice any difficulty in the deceased's walking or breathing, there was definitely no head laceration and no apparent lip injury. The appellant and the deceased had been arguing the previous night and on the day of her death. Before the deceased visited Nurse McKenna, Winifred Ngakyunkwokka saw blood on the deceased's nostrils and lips. In addition, the deceased's sister said "I looked at her and she was in the chest, paining up in the head". The pathologist Dr Williams agreed it was possible that an earlier injury to the chest could have been exacerbated by a fall against the shower wall. Despite the shocking injuries to the deceased, Dr Williams agreed it would be possible for her, after receipt of these injuries, to breathe lightly using only the diaphragm rather than the chest and ribs and although she would appear breathless, she would be able to walk. She would not have died immediately but within half an hour to 10 hours of the infliction of the trauma. Severe force would be required to inflict the injuries such as stomping or jumping on the deceased: the injuries could not result from merely falling to the ground and were more consistent with injuries arising from motor vehicle accidents. When…

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 O'Brien

Details

AGLC: R v O'Brien [1999] QCA 216
Case: [1999] QCA 216
Decision Date: 11/06/1999

CaseChat Overview and Summary

The case of R v O'Brien involved the appellant appealing against a conviction for murder. The central dispute centred around the reliability of the trial judge's summing up regarding the use of lies allegedly told by the appellant, and whether these lies, in conjunction with other evidence, could justify a verdict of guilty for murder or manslaughter. The appeal was heard in the High Court of Australia.

The legal issues the court was required to decide included whether the trial judge's summing up correctly allowed the jury to consider the lies as part of the evidence for a murder or manslaughter conviction, and if the summing up was misleading or potentially resulted in an unreasonable or insupportable verdict. The appellant argued that the summing up was flawed because it did not properly direct the jury on the necessity to establish the truth of the lies before using them as part of the evidence for a conviction.

The court held that the summing up was indeed flawed as it did not adequately direct the jury on the necessity to establish the truth of the lies before considering them as part of the evidence for a conviction. The summing up allowed the jury to convict on the basis of the lies alone or in conjunction with other evidence, without requiring the lies to be proven true. This was found to be an incorrect direction of law. The court concluded that the summing up was misleading and could lead to an unreasonable or insupportable verdict. Therefore, the conviction was quashed, and a new trial was ordered.

The final orders of the court were to quash the conviction and order a new trial for the appellant. The court found that the summing up provided by the trial judge contained a significant error in directing the jury on the use of the appellant's alleged lies, which warranted a new trial to ensure a fair determination of the appellant's guilt or innocence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In his summing up the learned trial judge, in addressing the use which could be made of lies allegedly told by the appellant, said inter alia - “It would only be that if upon the evidence you thought that the accused had told a lie about the circumstances as to what happened between he and the deceased, and you are satisfied beyond a reasonable doubt from that evidence taken alone, or from that evidence with other evidence such as the nature and extent of the injuries Dr Williams observed, that the accused had killed the deceased in circumstances amounting to murder, that a verdict of guilty could be returned to murder. Similarly when one considers the question of manslaughter, if the evidence that I have just referred to did not satisfy you beyond a reasonable doubt that the accused was guilty of murder, it would only be if that evidence, that is the evidence that the accused had told a lie about relevant events as between he and the deceased, taken alone or with the other evidence that I have just referred to, satisfied you beyond a reasonable doubt that the accused had unlawfully killed the deceased in circumstances amounting to manslaughter that you could return a verdict of guilty of manslaughter.” (emphasis supplied) It will be seen that the subject matter of the alleged lie is described in extremely general terms as - I agree with the orders proposed by Pincus JA.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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