R v Roberts and Pearce

[2012] QCA 82

SUPREME COURT OF QUEENSLAND

CITATION:

R v Roberts & Pearce [2012] QCA 82

PARTIES:

R
v
ROBERTS, Ashley
(appellant)

R
v
PEARCE, Blaze Seaton
(appellant)

FILE NO/S:

CA No 193 of 2011
CA No 212 of 2011
SC No 902 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Appeals against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

5 April 2012

DELIVERED AT:

Brisbane

HEARING DATE:

1 February 2012

JUDGES:

Chief Justice and White JA and Atkinson J
Separate reasons for judgment of each member of the Court, White JA and Atkinson J concurring as to the orders made, Chief Justice dissenting in part

ORDER:

1.   Dismiss Roberts’ appeal against conviction.

2.   Allow Pearce’s appeal against conviction and order a new trial.

CATCHWORDS:

APPEAL AND NEW TRIAL – NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS – IN GENERAL – MISCARRIAGE OF JUSTICE – IN GENERAL – where Roberts and Pearce convicted of murder and a third man convicted of being an accessory to murder after the fact at the same trial – where some statements made by the accused were inadmissible against each other – where conduct as an indicator of guilt put to the jury – whether separate trials should have been ordered – whether the direction as to conduct as an indicator of guilt sufficiently distinguished between consciousness of murder or some other act – whether appeal should be allowed

APPEAL AND NEW TRIAL – NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL OF NEW TRIAL – where Pearce convicted of murder as an aider – where jury directed such a conviction required the jury to be satisfied of three things – whether there was a misdirection as to whether Pearce was aiding – whether there was a miscarriage of justice

Criminal Code 1899 (Qld), s 7(1)(c)

Giorganni v The Queen (1985) 156 CLR 473; [1985] HCA 29, followed
R v Davidson [2000] QCA 39, followed
R v Jeffrey [2003] 2 Qd R 306; [1997] QCA 460, followed
R v Mitchell [2008] 2 Qd R 142; [2007] QCA 267, followed
R v Roughan& Jones (2007) 179 A Crim R 389; [2007] QCA 443, considered
Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30, cited

COUNSEL:

J Allen for the appellant, Roberts
M J Copley for the appellant, Pearce
R G Martin SC for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant, Roberts
Russo Mahon Lawyers for the appellant, Pearce
Director of Public Prosecutions (Queensland) for the respondent

CHIEF JUSTICE:

Introduction

1. The appellants, together with Patrick Doyle, were tried for the murder of Kevin Brack at premises in Fortitude Valley on 17 February 2009.  After a three week trial, each of the appellants was convicted of murder, and Doyle was convicted of being an accessory after the fact to the offence of murder.

1. The appellant Roberts appeals on grounds that the…