R v Oliver - [2016] QCA 27

SUPREME COURT OF QUEENSLAND

CITATION:

R v Oliver [2016] QCA 27

PARTIES:

R
v
OLIVER, Anthony Charles
(appellant)

FILE NO/S:

CA No 326 of 2013
SC No 479 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 5 December 2013

DELIVERED ON:

16 February 2016

DELIVERED AT:

Brisbane

HEARING DATE:

28 August 2015

JUDGES:

Holmes CJ and Gotterson and Morrison JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was found guilty of murder on 5 December 2013 in the Supreme Court in Brisbane – where the appellant filed a notice of appeal against his conviction on 20 December 2013 – where it was not contested that the appellant killed the deceased – where the appellant denied an intent to kill – where the sole ground of appeal is that the learned trial judge erred in failing to direct the jury not to use consciousness of guilt evidence in assessing whether the prosecution had proved an intent to kill – whether the non-direction caused a miscarriage of justice

Criminal Code (Qld), s 271(2), s 302, s 668E

Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, cited
R v Ali[2001] QCA 331, considered
R v Box and Martin[2001] QCA 272, cited
R v Ciantar (2006) 16 VR 26; [2006] VSCA 263, cited
R v M [1995] 1 Qd R 213; [1994] QCA 7, cited
R v Mitchell [2008] 2 Qd R 142; [2007] QCA 267, cited
R v Richens [1993] 4 All ER 877; [1992] EWCA Crim 3, cited
R v Wehlow (2001) 122 A Crim R 63; [2001] QCA 193, cited
Simic v The Queen (1980) 144 CLR 319; [1980] HCA 25, cited

COUNSEL:

P J Morrissey for the appellant
M Cowen QC for the respondent

SOLICITORS:

Robertson O’Gorman for the appellant
Director of Public Prosecutions (Queensland) for the respondent

HOLMES CJ: I agree with the reasons of Gotterson JA and the order he proposes.
GOTTERSON JA: On 5 December 2013, the appellant, Anthony Charles Oliver, was found guilty of the crime of murder: Criminal Code s 302. The count on which he was convicted alleged that on a date unknown between 19 December 2010 and 5 February 2011 at Esk or elsewhere in Queensland, he murdered Norman Desmond Cheney.[1] On 5 December 2013, the appellant was sentenced to life imprisonment. A period of pre-sentence custody of 991 days was declared to be time already served under the sentence.
[1]AB2.
The appellant filed a notice of appeal against his conviction on 20 December 2013. The ground on which the appeal was argued was substituted by amendment allowed at the hearing of the appeal.
The death

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 Oliver

Details

AGLC: R v Oliver [2016] QCA 27
Case: [2016] QCA 27
Decision Date: 16 February 2016

CaseChat Overview and Summary

In the case of R v Oliver, the appellant was convicted of murder by the Supreme Court of Brisbane on 5 December 2013. The appellant subsequently filed a notice of appeal against his conviction on 20 December 2013. The primary issue in this appeal is whether the trial judge's failure to direct the jury on the proper use of consciousness of guilt evidence resulted in a miscarriage of justice. Specifically, the appellant argues that the judge should have instructed the jury not to use such evidence to infer intent to kill. The trial judge's directions to the jury, particularly regarding the evidence of the appellant's actions and statements post-killing, were examined to determine if they appropriately guided the jury on the relevance and limitations of consciousness of guilt evidence.

The court assessed the arguments and evidence, taking into account the prosecutor's detailed reference to the appellant's post-killing conduct, which the prosecutor linked to the probability of intent to kill. The court concluded that the trial judge's directions were sufficient and did not constitute a misdirection. The prosecutor's detailed summation, which included the appellant's post-killing actions, provided the jury with a clear understanding of how such evidence should be considered. The court found that the trial judge's overall directions to the jury were adequate and did not result in a miscarriage of justice.

The appeal was dismissed by the court, affirming the conviction of the appellant. The court found that the trial judge's directions were appropriate, and the omission to specifically address the use of consciousness of guilt evidence did not undermine the fairness of the trial. The evidence presented, including the prosecutor's summation, sufficiently informed the jury on the proper evaluation of such evidence.

Orders

Orders of the court

Appeal 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

The appellant submits that in these circumstances, it was appropriate for the learned trial judge to have told the jury that they could not safely use the lies and other acts to infer that the appellant was conscious of having intentionally killed the deceased. Her Honour’s failure to do so constituted a misdirection.[59] Consideration of this ground of appeal requires an examination of the directions on the consciousness of guilt evidence that were given. The examination needs to be undertaken with due regard for contextual considerations.[59]Appellant’s written submissions paragraph 19.Contextual considerations In discussions with counsel in the jury’s absence prior to addresses and immediately after the prosecutor had submitted that manslaughter needed to be left to the jury, the learned trial judge asked the prosecutor what circumstances he relied on as evidence from which an intent to kill or to do grievous bodily harm should be drawn. The prosecutor mentioned the method of killing – that a hand gun and a knife were used, and the location of the injuries – the gunshot wound to the back of the head and a cutting of the throat.[60] No reference was made to the consciousness of guilt evidence.[60]AB543; Tr7-81 ll1-27. Defence counsel addressed first. He did so on the basis that “what the trial was all about” was whether, on all the evidence, the appellant’s account of acting in self-defence was one that they could exclude beyond reasonable doubt so as to convict him of murder.[61] He did not refer to the alternative count of manslaughter. Insofar as he referred to the consciousness of guilt evidence, it was for the purpose of submitting that it was insufficient to negative self-defence.[61]Tr8-20 ll5-9. In his address, the prosecutor referred to the consciousness of guilt evidence in detail.[62] He urged the jury to reject the appellant’s account.[63] He invited them to find that it was not reasonably necessary for the appellant to shoot the deceased in the back of the head, even if he had been attacked by the deceased and the deceased was armed with a knife. His proposition was that getting out of the car and running was a reasonable option.[64] After reminding the jury that they had to be satisfied beyond reasonable doubt that the deceased was not acting in self-defence and that it was not for the appellant to prove that he was, the prosecutor concluded his address with the following words:“But when you look at all the factors that I’ve taken you thorough, ladies and gentlemen, about his actions before and after and the nature of the injury that this man suffered, can there be any reasonable doubt that this man killed Norm Cheney, that, at the time he did, he had an intention to cause his death, and that he wasn’t defending himself against Norm Cheney: Again, I’d ask you to think about midnight on the 20th December of 2010. Two people turn up at Langtons Lane, one of them has a hole through the back of his head, the other asked to leave a car parked in the shed and if he can borrow the other car so he can head back and just spend the rest of the day with the dead man’s wife.”[65] (emphasis supplied) This concluding submission linked the appellant’s post-death conduct, including the acts which occurred about midnight specifically mentioned by the prosecutor, to a probability beyond reasonable doubt that the appellant had killed the deceased with an intention to cause his death.[62]Tr8-32 – Tr8-41.[63]Tr8-44 ll13-17.[64]Tr8-44 l27 – Tr8-45 l14.[65]Tr 8-45 ll33-41.The directions

CITATION:	R v Oliver [2016] QCA 27
PARTIES:	R v OLIVER, Anthony Charles (appellant)
FILE NO/S:	CA No 326 of 2013 SC No 479 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Conviction: 5 December 2013
DELIVERED ON:	16 February 2016
DELIVERED AT:	Brisbane
HEARING DATE:	28 August 2015
JUDGES:	Holmes CJ and Gotterson and Morrison JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was found guilty of murder on 5 December 2013 in the Supreme Court in Brisbane – where the appellant filed a notice of appeal against his conviction on 20 December 2013 – where it was not contested that the appellant killed the deceased – where the appellant denied an intent to kill – where the sole ground of appeal is that the learned trial judge erred in failing to direct the jury not to use consciousness of guilt evidence in assessing whether the prosecution had proved an intent to kill – whether the non-direction caused a miscarriage of justice Criminal Code (Qld), s 271(2), s 302, s 668E Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, cited R v Ali[2001] QCA 331, considered R v Box and Martin[2001] QCA 272, cited R v Ciantar (2006) 16 VR 26; [2006] VSCA 263, cited R v M [1995] 1 Qd R 213; [1994] QCA 7, cited R v Mitchell [2008] 2 Qd R 142; [2007] QCA 267, cited R v Richens [1993] 4 All ER 877; [1992] EWCA Crim 3, cited R v Wehlow (2001) 122 A Crim R 63; [2001] QCA 193, cited Simic v The Queen (1980) 144 CLR 319; [1980] HCA 25, cited
COUNSEL:	P J Morrissey for the appellant M Cowen QC for the respondent
SOLICITORS:	Robertson O’Gorman for the appellant Director of Public Prosecutions (Queensland) for the respondent