R v Pearce - [1998] QCA 325

COURT OF APPEAL

[1998] QCA 325

McPHERSON JA
THOMAS JA

CULLINANE J

CA No 206 of 1998
THE QUEEN
v.

STEPHEN ANTHONY PEARCE	Applicant
CA No 215 of 1998 CA No 216 of 1998 CA No 220 of 1998
THE QUEEN
v.
MALCOLM CONE
STEPHEN GRAEME CLARK
CAROL JOY ATKINSON	Appellants

BRISBANE
..DATE 22/09/98
220998 T18/SB21 M/T COA238/98
McPHERSON JA: The Court having discussed this matter, I will
proceed now to give my reasons for judgment.
On 14 November 1996 Alan Humphrey (who is the complainant in
count 2 of the indictment) Kellie Burnell and Priscilla
Charlton (who is the complainant in count 5), together with
Kellie Burnell's three children, were living in a house at
Buddina. At about 8 p.m. or a little later, the appellant,
Stephen Clark, known as "Steph", together with Malcolm Cone
and Carole Atkinson entered the house.

According to the evidence of Humphrey, a fourth member of the group, who is the applicant Stephen Pearce, also came into the house then or a little later. Those persons did so without the permission of the occupiers. The Crown case was that the appellant and Atkinson were armed with pieces of wood which Humphrey said resembled cricket stumps in appearance or size. Pearce, he said, was equipped with a golf club, which it may be he obtained at the scene of the crime, and Cone with an aluminium baseball bat or something having that appearance. According to the evidence that was given by Humphrey and other Crown witnesses, the jury would have been entitled to accept that the group came for money and, it may be, drugs, the money being, it seems, a sum that the appellant claimed was owing to him by Kellie Burnell.

The inescapable inference from all the evidence was that they were prepared to use serious violence in order to obtain that money. In short, it was open to the jury on the evidence at

the trial to infer that they formed a criminal conspiracy to
220998 T18/SB21 M/T COA238/98
break into the house at night and rob the inhabitants or one
or more of them.
After entering the house, the appellant Clark began to assault
Humphrey who, it may be noted, had some prior acquaintance
with these intruders. While this was happening, the accused
were demanding that Humphrey give them money or that he show
them where it was. The appellant hit Humphrey on the head
with a piece of wood which he was carrying. It cut his
forehead, which began to bleed. When he raised his arm for
protection, Humphrey was struck on the arm, whereupon he
lunged at the appellant and wrestled him to the floor.
According to Humphrey's evidence, it was the appellant,
together with Cone and Atkinson, who hit him on the arm.
While wrestling with the appellant, Humphrey could feel Cone
and Atkinson beating him with their weapons and hitting him in
the ribs and elsewhere.

Pearce, meanwhile, was standing at the front door with his golf…

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 Pearce

Details

AGLC: R v Pearce [1998] QCA 325
Case: [1998] QCA 325
Decision Date: 22/09/1998

CaseChat Overview and Summary

The matter before the Court of Appeal in R v Pearce involved an appeal by Stephen Graeme Clark and an application for leave to appeal by Stephen Anthony Pearce, both against their convictions and sentences. The appeal and application arose from a home invasion and armed robbery incident that occurred on 14 November 1996 at Buddina, where the appellants, along with Malcolm Cone and Carole Atkinson, entered a house without permission and assaulted the occupants. The central legal issues were whether the appellants were correctly found guilty under sections 7 and 8 of the Code for their respective roles in the assault and whether the sentences imposed were appropriate.

The Court of Appeal considered whether the trial judge's directions to the jury on the application of section 8 of the Code were correct, particularly regarding the requirement that an offence must be committed "in the prosecution of" the common intention. The Court held that the trial judge properly directed the jury, and that the appellants were correctly found guilty as they were active participants in the assault. The Court found that the appellants' actions were a probable consequence of carrying out the original common intention to commit robbery, and thus fell within the scope of section 8.

Regarding sentencing, the Court addressed the appellants' contentions that the trial judge failed to distinguish between them and their co-offenders. The Court noted that Clark's culpability was significant, and Pearce's lesser physical participation did not warrant a different sentence. The Court concluded that the trial judge had appropriately exercised his sentencing discretion, considering the backgrounds and histories of the offenders.

Ultimately, the Court of Appeal dismissed Clark's appeal against his conviction and denied both Clark's and Pearce's applications for leave to appeal against their sentences. The Court upheld the trial judge's decisions and affirmed the sentences imposed.

Orders