R v Parker - [1993] QCA 444

IN THE COURT OF APPEAL	[1993] QCA 444
SUPREME COURT OF QUEENSLAND

C.A. No. 311 of 1993

Brisbane

[R. v. Parker]

T H E Q U E E N

-v-

TIMOTHY LAWRENCE PARKER

Appellant

The

President

Mr Justice Pincus
Mr Justice Thomas

Judgment delivered the 4th day of November 1993
Reasons for judgment prepared by the President separately and Pincus J.A. and Thomas J.

jointly, all agreeing in the order to be made.

APPEAL DISMISSED.

CATCHWORDS:
Criminal law - evidence - incompetence of spouses to give evidence at common law - statutory
position under s. 8(6) Evidence Act.
Spouse's refusal to give evidence - whether directions adequate to avoid prejudice - Demirok v.
The Queen (1977) 137 C.L.R. 20 distinguished.
Criminal law - appeal against conviction unsafe and unsatisfactory ground - adequacy of
circumstantial case.

Criminal law - intemperate address by prosecutor - Judge's directions - no miscarriage of justice.

Evidence Act 1977-1979 s. 8.
Leach v. R. [1912] A.C. 305.
Demirok v. The Queen (1977) 137 C.L.R. 20.
Pernich and Maxwell (1991) 55 A.Crim.R. 464.

R. v. M. [1991] 2 Qd.R. 68

Counsel:	N. McGroarty and P. Feeney for the Appellant R. Devlin for the Respondent
Solicitors:	Messrs A.W. Bale and Son for appellant Director of Prosecutions for respondent

Hearing date: 12th October, 1993
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 311 of 1993

Brisbane

Before The President

Mr Justice Pincus
Mr Justice Thomas

T H E Q U E E N

TIMOTHY LAWRENCE PARKER Appellant

REASONS FOR JUDGMENT - THE PRESIDENT

Judgment delivered 04/11/93

The circumstances giving rise to this appeal are discussed in detail in the judgment of Pincus JA and Thomas J. I agree with their Honours that the appeal should be dismissed.

I am comfortably satisfied that the conviction was neither unsafe nor unsatisfactory. On the contrary, there was a strong circumstantial case against the appellant, which included his claim of memory loss and his false assertions concerning the time when he arrived home and the extent of his contact with the deceased on the day when he was killed. It does not render a conviction unsafe and unsatisfactory that the prosecution does not prove beyond reasonable doubt every matter on which it relies for example, motive, opportunity and the identification of the murder weapon; what must be established beyond reasonable doubt are the offence charged and its essential constituent elements.

Probably the strongest point for the appellant concerned the times given by witnesses for various events; e.g. the times of the appellant's departure from McCarthy's house and of the first distress call at about 10.15 p.m.. However, it is common experience that such estimates are prone to error, and for that matter the constable who received the calls may have been mistaken in his identification of the first caller as the person who made the later call, i.e., Mrs Parker.

It is unnecessary to pursue these questions. The appellant was entitled to have the matters relied upon before…

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 Parker

Details

AGLC: R v Parker [1993] QCA 444
Case: [1993] QCA 444
Decision Date: 4/11/1993

CaseChat Overview and Summary

This appeal concerns the conviction of Timothy Lawrence Parker, who was found guilty of murder. The appeal was based on three grounds: the first was that the trial judge erred in making reference to the appellant's wife, who did not give evidence, the second was that the conviction was unsafe and unsatisfactory, and the third was that the trial miscarried due to an intemperate and unfair address by the Crown Prosecutor. The Court of Appeal, consisting of The President, Mr Justice Pincus, and Mr Justice Thomas, found that the appeal should be dismissed. The Court found that the trial judge's response to the jury's questions about the appellant's wife was appropriate and did not cause any prejudice. The Court also found that the circumstantial evidence against the appellant was strong and sufficient to support the conviction. Lastly, the Court found that the Crown Prosecutor's address, although intemperate, did not create a real risk of wrongly influencing the verdict, as the trial judge had properly directed the jury to disregard the inappropriate comments.

The Court of Appeal found that the conviction was safe and satisfactory, and that the appeal should be dismissed. The Court found that the trial judge's response to the jury's questions about the appellant's wife was appropriate and did not cause any prejudice. The Court found that the circumstantial evidence against the appellant was strong and sufficient to support the conviction. The Court also found that the Crown Prosecutor's address, although intemperate, did not create a real risk of wrongly influencing the verdict, as the trial judge had properly directed the jury to disregard the inappropriate comments. The appeal was dismissed, and the conviction of the appellant stood.

Orders