R v O'Rourke

Case [2010] QCA 122

SUPREME COURT OF QUEENSLAND

CITATION:

R v O'Rourke [2010] QCA 122

PARTIES:

R
v
O'ROURKE, Christopher John
(appellant)

FILE NO/S:

CA No 289 of 2009
DC No 229 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

25 May 2010

DELIVERED AT:

Brisbane

HEARING DATE:

29 March 2010

JUDGES:

Muir JA, Fryberg and Applegarth JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    The appeal against conviction be dismissed;

2.    The application for leave to appeal against sentence be refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – appellant convicted of wilfully and unlawfully setting fire to his house and of attempting to dishonestly obtain a sum of money – appellant charged jointly with co-accused – prosecution alleged appellant procured co-accused to set the fire – prosecution case based on alleged financial difficulties of appellant and existence of insurance policy on the house – appellant argued he was not in financial difficulty – appellant proximate to the house minutes before fire – appellant and co-accused friends – co-accused previously convicted of causing malicious damage by fire – whether verdict against weight of evidence – whether verdict unsafe and unsatisfactory

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – prosecution alleged appellant's motive was greed in opening address – prosecutor later alleged appellant wanted to destroy the house to put up a new house – whether prosecution changed alleged motive – whether primary judge erred in failing to direct the jury that the motive opened by prosecution had not been established

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – private investigator specialising in fire investigation gave evidence that the house was over-insured –investigator gave estimate of cost of rebuilding – investigator held a builder's licence and had worked as a builder – appellant submitted investigator's valuation expertise not established – whether primary judge erred in failing to direct the jury to disregard that evidence

Criminal Code 1899 (Qld), s 668E(1)

Ex parte Graham; Re Dowling [1969] 1 NSWR 231, cited
Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77, cited
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited
Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9, applied
R v Caldwell (2009) 22 VR 93; [2009] VSCA 41, cited
R v Dyke[2009] QCA 339, distinguished
R v Martin (2002) 134 A Crim R 568; [2002] QCA 443, cited
R v Smith (2007) 179 A Crim R 453; [2007] QCA 447, cited

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Details
AGLC
R v O'Rourke [2010] QCA 122
Case
[2010] QCA 122
Decision Date

CaseChat Overview and Summary

The appellant, O'Rourke, appealed against his conviction for wilfully and unlawfully setting fire to his house and attempting to dishonestly obtain a sum of money from an insurance policy. The appellant was charged jointly with a co-accused, who was previously convicted of causing malicious damage by fire. The prosecution alleged that the appellant procured his co-accused to set the fire due to his financial difficulties and the existence of an insurance policy on the house. The appellant argued that he was not in financial difficulty and was proximate to the house minutes before the fire. The appellant and his co-accused were friends.

The legal issues before the court were whether the verdict was against the weight of the evidence and whether it was unsafe and unsatisfactory. The court also had to consider whether there were particular circumstances amounting to a miscarriage of justice, such as misdirection or non-direction of the jury. The appellant submitted that the prosecution changed the alleged motive during the trial and that the primary judge erred in failing to direct the jury that the motive opened by the prosecution had not been established. The appellant also submitted that the primary judge erred in failing to direct the jury to disregard the evidence of a private investigator who specialised in fire investigation and gave evidence that the house was over-insured.

The court dismissed the appeal against conviction and held that the verdict was not against the weight of the evidence. The court found that the primary judge did not err in failing to direct the jury that the motive opened by the prosecution had not been established. The court held that the prosecution's case was not based solely on the motive but also on other evidence, such as the appellant's financial difficulties and the existence of the insurance policy. The court also held that the primary judge did not err in failing to direct the jury to disregard the evidence of the private investigator. The court found that the investigator's valuation expertise was established, and his evidence was relevant to the case.

The court refused the application for leave to appeal against sentence. The court held that the sentence was not manifestly excessive or inadequate and that there were no grounds for interfering with the sentence. The court held that the primary judge had considered all relevant factors and had exercised his discretion properly.

Orders

Orders of the court

1. The appeal against conviction be dismissed;

2. The application for leave to appeal against sentence be refused.

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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