R v Oulds - [2014] QCA 223

SUPREME COURT OF QUEENSLAND

CITATION:

R v Oulds [2014] QCA 223

PARTIES:

R
v
OULDS, Shane Michael
(appellant)

FILE NOS:

CA No 349 of 2012
SC No 860 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

5 September 2014

DELIVERED AT:

Brisbane

HEARING DATE:

15 April 2014

JUDGES:

Holmes and Fraser JJA and Thomas J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant was convicted by a jury of the murder of Jye Burns – where the two men present when Burns was killed were the appellant and Shane Moroney – where Moroney’s account that the appellant shot Burns was critical to the prosecution’s case – where the appellant’s defence was that it was Moroney who shot Burns – where the appellant appeals his conviction on the ground that the conduct of his trial counsel was incompetent and resulted in a miscarriage of justice – where the appellant contends that his trial counsel should have called him to give evidence – where the appellant complains that without his giving evidence, the jury had only Moroney’s detailed version of events before them – whether trial counsel's advice not to give evidence was so flawed as to produce a conclusion of incompetence giving rise to a miscarriage of justice

EVIDENCE – COURSE OF EVIDENCE AND ADDRESSES – ADDRESSES – GENERALLY – where the appellant was convicted by a jury of the murder of Jye Burns – where the two men present when Burns was killed were the appellant and Shane Moroney – where Moroney’s account that the appellant shot Burns was critical to the prosecution’s case – where the appellant’s defence was that it was Moroney who shot Burns – where the appellant appeals his conviction on the ground that the conduct of his trial counsel was incompetent and resulted in a miscarriage of justice – where defence counsel made an opening statement but did not allege that Moroney had shot Burns – where the appellant complains that trial counsel’s failure to outline the appellant’s case in the opening statement was incompetent – where there is no prescription for what may be said in an opening statement in Queensland – where an opening statement properly identifies the issues – where the real issue here was not whether Moroney had killed Burns but whether he could be believed beyond reasonable doubt when he said that the appellant had done so – whether there was any incompetence or miscarriage of justice

EVIDENCE – COURSE OF EVIDENCE AND ADDRESSES – WITNESSES – WHEN PERMITTED AND IN GENERAL – ON WHAT MATTERS – where the appellant was convicted by a jury of the murder of Jye Burns – where the two men present when Burns was…

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 Oulds

Details

AGLC: R v Oulds [2014] QCA 223
Case: [2014] QCA 223
Decision Date: 5 September 2014

CaseChat Overview and Summary

The appellant, who was convicted of the murder of Jye Burns, appealed the conviction on the basis that his trial counsel's conduct was incompetent and resulted in a miscarriage of justice. The two individuals present during the murder were the appellant and Shane Moroney. The critical element of the prosecution's case was Moroney's account that the appellant shot Burns. The appellant's defence was that it was Moroney who shot Burns. The appellant argued that his trial counsel should have called him to give evidence, and that without his evidence, the jury only had Moroney’s version of events. The appellant also complained that trial counsel failed to outline the defence case in the opening statement, did not cross-examine Moroney in accordance with his instructions, and failed to put to Moroney that he had changed his clothing. Moroney was recalled by telephone to address this omission. The appellant contended that these actions constituted incompetence and caused a miscarriage of justice.

The court examined whether trial counsel's advice not to give evidence was so flawed as to produce a conclusion of incompetence. The court noted that there is no prescription for what may be said in an opening statement in Queensland. The court also considered whether the failure to outline the defence case in the opening statement constituted incompetence. The court held that the real issue was not whether Moroney had killed Burns but whether he could be believed beyond reasonable doubt when he said that the appellant had done so. The court found that trial counsel's decision on what parts of the appellant's instructions to put to Moroney was a legitimate forensic choice. The court also found that the failure to put to Moroney that he had changed his clothing and the decision to recall him by telephone rather than in person did not amount to incompetence or a miscarriage of justice.

The court dismissed the appeal, finding that the appellant's trial counsel's conduct did not amount to incompetence or a miscarriage of justice. The appellant's conviction of murder was upheld. The court found that the evidence was sufficient to convict the appellant beyond reasonable doubt, and that the trial was conducted fairly and in accordance with the law.

The appeal is dismissed.

Orders

Orders of the court

The appeal is 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

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CITATION:	R v Oulds [2014] QCA 223
PARTIES:	R v OULDS, Shane Michael (appellant)
FILE NOS:	CA No 349 of 2012 SC No 860 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	5 September 2014
DELIVERED AT:	Brisbane
HEARING DATE:	15 April 2014
JUDGES:	Holmes and Fraser JJA and Thomas J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The appeal is dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant was convicted by a jury of the murder of Jye Burns – where the two men present when Burns was killed were the appellant and Shane Moroney – where Moroney’s account that the appellant shot Burns was critical to the prosecution’s case – where the appellant’s defence was that it was Moroney who shot Burns – where the appellant appeals his conviction on the ground that the conduct of his trial counsel was incompetent and resulted in a miscarriage of justice – where the appellant contends that his trial counsel should have called him to give evidence – where the appellant complains that without his giving evidence, the jury had only Moroney’s detailed version of events before them – whether trial counsel's advice not to give evidence was so flawed as to produce a conclusion of incompetence giving rise to a miscarriage of justice EVIDENCE – COURSE OF EVIDENCE AND ADDRESSES – ADDRESSES – GENERALLY – where the appellant was convicted by a jury of the murder of Jye Burns – where the two men present when Burns was killed were the appellant and Shane Moroney – where Moroney’s account that the appellant shot Burns was critical to the prosecution’s case – where the appellant’s defence was that it was Moroney who shot Burns – where the appellant appeals his conviction on the ground that the conduct of his trial counsel was incompetent and resulted in a miscarriage of justice – where defence counsel made an opening statement but did not allege that Moroney had shot Burns – where the appellant complains that trial counsel’s failure to outline the appellant’s case in the opening statement was incompetent – where there is no prescription for what may be said in an opening statement in Queensland – where an opening statement properly identifies the issues – where the real issue here was not whether Moroney had killed Burns but whether he could be believed beyond reasonable doubt when he said that the appellant had done so – whether there was any incompetence or miscarriage of justice EVIDENCE – COURSE OF EVIDENCE AND ADDRESSES – WITNESSES – WHEN PERMITTED AND IN GENERAL – ON WHAT MATTERS – where the appellant was convicted by a jury of the murder of Jye Burns – where the two men present when Burns was…