R v O'Keefe - [2023] QCA 116

SUPREME COURT OF QUEENSLAND

CITATION:

R v O’Keefe [2023] QCA 116

PARTIES:

R
v
O’KEEFE, Anthony James
(appellant)

FILE NO/S:

CA No 197 of 2021
SC No 96 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Townsville – Date of Conviction: 2 August 2021 (North J)

DELIVERED ON:

2 June 2023

DELIVERED AT:

Brisbane

HEARING DATE:

15 May 2023

JUDGES:

Flanagan and Boddice JJA and Ryan J

ORDER:

The appeal be dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted by jury of two counts of attempted murder (Counts 1 and 4), one count of burglary by breaking at night (Count 2), one count of murder (Count 3), two counts of threatening violence at night (Counts 5 and 7) and one count of wilful damage (Count 6) – where the appellant appeals against the convictions in relation to Counts 2 and 3 on the basis that the verdicts were unsafe and unsatisfactory – where the appellant submits that the jury could not have been satisfied that the prosecution had excluded beyond reasonable doubt the reasonable hypothesis that another person, namely the victim of Count 1, killed the deceased – where the prosecution’s case was circumstantial – where the appellant submits that the victim of Count 1 was not a credible or reliable witness – where the appellant submits that because he and the victim of Count 1 consumed the same drugs on the night of the offending, they both should have experienced the same violent side effects – where the appellant submits that because DNA consistent with that of the victim of Count 1 was present at and inside the deceased’s dwelling, and in particular, under the deceased’s left hand fingernails, an inference arose that there were two persons at the dwelling of the deceased – whether on the evidence as a whole it was reasonably open to the jury to be satisfied that the prosecution had excluded beyond reasonable doubt the reasonable hypothesis that another person killed the deceased – whether the verdicts are unreasonable or cannot be supported by evidence

Criminal Code (Qld), s 668E(1)

Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25, followed
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, followed
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, followed
R v Clapham[2017] QCA 99, applied
R v Conn; R v Conn; Ex parte Attorney-General (Qld)[2017] QCA 220, applied
R v Sharma; R v Agrawal[2017] QCA 209, applied
Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, cited

COUNSEL:

D P Jones KC, with E J Cooper, for the appellant (pro bono)
T A Fuller KC, with S K Sutherland, for the respondent

SOLICITORS:

Guest Lawyers for the appellant (pro bono)
Director of Public Prosecutions (Queensland) for the respondent

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'Keefe

Details

AGLC: R v O'Keefe [2023] QCA 116
Case: [2023] QCA 116
Decision Date: 2 June 2023

CaseChat Overview and Summary

The appeal in R v O'Keefe concerns the convictions of the appellant for multiple counts, including attempted murder, burglary, murder, threats, and wilful damage. The appellant appealed against his convictions on Counts 2 (burglary) and 3 (murder) on the grounds that the verdicts were unreasonable and unsupported by the evidence. The appellant argued that the jury could not have been satisfied beyond reasonable doubt that the prosecution had excluded the hypothesis that another person, specifically the victim of Count 1, had killed the deceased. The prosecution's case was circumstantial, and the appellant further argued that the victim of Count 1 was not a credible witness due to her drug use and dishonesty. The appellant also contended that because both he and the victim consumed the same drugs, they should have experienced similar violent side effects, and the presence of the victim's DNA at the crime scene suggested that there were two people present.

The court had to decide whether, on the evidence as a whole, it was reasonably open to the jury to be satisfied that the prosecution had excluded beyond reasonable doubt the hypothesis that another person killed the deceased. The court considered the credibility of the victim's evidence, which the jury had already scrutinised and accepted in relation to Count 1. The court noted the trial judge's direction that the jury should scrutinise the victim's evidence carefully but did not need to reject it outright due to her drug use and dishonesty. The presence of the victim's DNA at the crime scene was acknowledged, but the court found that it did not necessarily undermine the jury's conclusion that the appellant was the murderer. The hypothesis that the victim killed the deceased was based on the unreliability of her evidence, which the jury had already assessed and accepted in part.

The court held that the jury's verdicts were supported by the evidence and that it was reasonably open to them to find the appellant guilty of the charges against him. The appeal was dismissed, and the convictions stood. The court found that the evidence, including the victim's injuries and the appellant's actions, sufficiently supported the jury's conclusion that the appellant was responsible for the crimes. The presence of the victim's DNA at the crime scene, while notable, did not sufficiently rebut the evidence against the appellant.

Orders

Orders of the court

The appeal be 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

At trial the Crown contended that as Ms Speechly-Faulks had been the subject of an attempted unlawful killing by the appellant which resulted in her bleeding from a number of serious wounds, the transference of her DNA to the appellant and the knife used to stab her was inevitable. This conclusion was supported by evidence of the presence of Ms Speechly-Faulks’ DNA at several locations in Wright Street, including on a swing set and the security grill at 71 Wright Street and the bonnet of the white utility at 10 Lister Crescent. As already noted, the DNA of Ms Speechly-Faulks was also located at 88 Wright Street.Consideration The hypothesis that it was Ms Speechly-Faulks who killed the deceased was founded on three primary propositions. The first was that Ms Speechly-Faulks was not a credible or reliable witness. Accordingly, her evidence that she never left her house on the night of 26 July 2016 should have been rejected. Her creditworthiness and reliability were to be assessed against various factors, including her being a drug addict who had lied to police. She had denied taking drugs with the appellant, she denied having a mobile phone and had lied about the appellant leaving her residence and coming back. There are a number of difficulties with this first foundation for the hypothesis. The learned trial judge gave the following direction in accordance with Robinson v The Queen (1999) 197 CLR 162:[3]“You will also recall her evidence was that she was an intravenous drug user, addicted to methylamphetamine and a regular consumer of cannabis. She also admitted to being a supplier of dangerous drugs. She gave evidence that on the day in question she’d consumed methylamphetamine and cannabis. Her evidence was that she’d had a shot of methylamphetamine at the time the defendant had his shot of methylamphetamine. The evidence of her dishonesty and her drug use raises for consideration by you whether her evidence is reliable and should be accepted. While it is a matter for you whether her evidence is reliable and accurate, you should take great care. You should scrutinise her evidence very carefully and not act on it unless after careful consideration and scrutiny you are satisfied beyond reasonable doubt that her evidence is accurate and reliable. If you have a reasonable doubt about the accuracy and reliability of her evidence, then you should not convict the defendant of count 1, and you should find him not guilty on count 1. If however, you are satisfied after scrutinising her evidence and considering it carefully…satisfied beyond reasonable doubt that her evidence is accurate and reliable, then you should consider her evidence together with the other evidence relevant to count 1 and the consideration of whether the prosecution has proven its case beyond reasonable doubt. I give you that direction as a matter of law.” (RB 127 l40 – RB 128 l11).[3]RB 127 l40 – RB 128 l11. With the benefit of this direction, the jury still found the appellant guilty of Count 1. The appellant does not challenge the conviction in relation to this count. Ms Speechly-Faulks’ evidence as to the appellant’s offending was entirely consistent with and supported by the nature of her injuries. Having accepted Ms Speechly-Faulks’ evidence in relation to Count 1, it was open for the jury to accept her evidence that she did not leave her residence.

CITATION:	R v O’Keefe [2023] QCA 116
PARTIES:	R v O’KEEFE, Anthony James (appellant)
FILE NO/S:	CA No 197 of 2021 SC No 96 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Townsville – Date of Conviction: 2 August 2021 (North J)
DELIVERED ON:	2 June 2023
DELIVERED AT:	Brisbane
HEARING DATE:	15 May 2023
JUDGES:	Flanagan and Boddice JJA and Ryan J
ORDER:	The appeal be dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted by jury of two counts of attempted murder (Counts 1 and 4), one count of burglary by breaking at night (Count 2), one count of murder (Count 3), two counts of threatening violence at night (Counts 5 and 7) and one count of wilful damage (Count 6) – where the appellant appeals against the convictions in relation to Counts 2 and 3 on the basis that the verdicts were unsafe and unsatisfactory – where the appellant submits that the jury could not have been satisfied that the prosecution had excluded beyond reasonable doubt the reasonable hypothesis that another person, namely the victim of Count 1, killed the deceased – where the prosecution’s case was circumstantial – where the appellant submits that the victim of Count 1 was not a credible or reliable witness – where the appellant submits that because he and the victim of Count 1 consumed the same drugs on the night of the offending, they both should have experienced the same violent side effects – where the appellant submits that because DNA consistent with that of the victim of Count 1 was present at and inside the deceased’s dwelling, and in particular, under the deceased’s left hand fingernails, an inference arose that there were two persons at the dwelling of the deceased – whether on the evidence as a whole it was reasonably open to the jury to be satisfied that the prosecution had excluded beyond reasonable doubt the reasonable hypothesis that another person killed the deceased – whether the verdicts are unreasonable or cannot be supported by evidence Criminal Code (Qld), s 668E(1) Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25, followed M v The Queen (1994) 181 CLR 487; [1994] HCA 63, followed R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, followed R v Clapham[2017] QCA 99, applied R v Conn; R v Conn; Ex parte Attorney-General (Qld)[2017] QCA 220, applied R v Sharma; R v Agrawal[2017] QCA 209, applied Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, cited
COUNSEL:	D P Jones KC, with E J Cooper, for the appellant (pro bono) T A Fuller KC, with S K Sutherland, for the respondent
SOLICITORS:	Guest Lawyers for the appellant (pro bono) Director of Public Prosecutions (Queensland) for the respondent