R v Scott - [2011] QCA 343

SUPREME COURT OF QUEENSLAND

CITATION:

R v Scott [2011] QCA 343

PARTIES:

R
v
SCOTT, Philip Tonal
(appellant)

FILE NO/S:

CA No 2 of 2011
SC No 1531 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

29 November 2011

DELIVERED AT:

Brisbane

HEARING DATE:

24 June 2011

JUDGES:

White JA, Margaret Wilson AJA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal against conviction dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL_ MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where appellant convicted of murder – where appellant pleaded guilty to manslaughter but plea not accepted in discharge of indictment – where appellant fatally shot son-in-law – where appellant initially told lies to police but later confessed to manslaughter – where trial judge gave adaptation of Zoneff direction – where appellant claimed primary judge insufficiently directed jury that lies relevant only to determining credibility – where appellant claimed trial judge failed to put defence case adequately to jury – whether a miscarriage of justice occurred

Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, cited
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63, considered
R v Chevathen & Dorrick (2001) 122 A Crim R 441; [2001] QCA 337, cited
R v Mitchell [2008] 2 Qd R 142; [2007] QCA 267, cited
R v Mogg (2000) 112 A Crim R 417; [2000] QCA 244, cited
R v Sheppard[2010] QCA 342, considered
RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3, cited
Simic v The Queen (1980) 144 CLR 319; [1980] HCA 25, cited
Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28, considered

COUNSEL:

J J Allen for the appellant
D C Boyle for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

WHITE JA: On 1 December 2010 after an 11 day trial in the Supreme Court the appellant was convicted of murdering Peter Brady at Rainbow Beach on 30 June 2008.

The appellant had pleaded guilty to manslaughter when arraigned on the charge of murder before the jury panel. The Crown did not accept that plea in discharge of the indictment.

Grounds of appeal

In lieu of the grounds of appeal in the notice of appeal the appellant sought and was granted leave to amend those grounds as follows:

“(1)the learned trial judge failed to properly direct the jury as to the use that might be made of evidence of lies by the appellant during his first interview by police;
(2)the learned trial judge failed to adequately put the defence case to the jury.”

The evidence at trial

The deceased, who was aged 39, was married to the appellant’s daughter. They had two young children…

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 Scott

Details

AGLC: R v Scott [2011] QCA 343
Case: [2011] QCA 343
Decision Date: 29 November 2011

CaseChat Overview and Summary

The case of R v Scott involved an appeal against the conviction of the appellant, who had been found guilty of murder following a trial in the Supreme Court of Victoria. The appellant had initially pleaded guilty to manslaughter but this plea was not accepted, leading to a trial on the charge of murder. The appellant had fatally shot his son-in-law. The central issues in the appeal were whether the trial judge's direction to the jury regarding the relevance of the appellant's lies to the police amounted to a misdirection or non-direction, and if so, whether this constituted a miscarriage of justice.

The court examined the trial judge's directions to the jury, specifically the adaptation of the Zoneff direction, which was used to address the relevance of the appellant's lies. The appellant argued that the primary judge did not sufficiently direct the jury that the lies were relevant only in assessing the appellant's credibility. The court considered the adequacy of the directions given and whether they allowed the jury to properly consider the defence case. The court found that the trial judge's directions were sufficient and did not result in a misdirection or non-direction that would amount to a miscarriage of justice.

The court concluded that the appellant's conviction should stand. The appeal was dismissed, and the conviction for murder was upheld. The court found that there was no miscarriage of justice as the trial judge's directions to the jury were adequate, and the appellant's conviction was properly secured. The final order was that the appeal against the conviction was dismissed.

Orders

Orders of the court

Appeal against conviction 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 Scott [2011] QCA 343
PARTIES:	R v SCOTT, Philip Tonal (appellant)
FILE NO/S:	CA No 2 of 2011 SC No 1531 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	29 November 2011
DELIVERED AT:	Brisbane
HEARING DATE:	24 June 2011
JUDGES:	White JA, Margaret Wilson AJA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal against conviction dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL_ MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where appellant convicted of murder – where appellant pleaded guilty to manslaughter but plea not accepted in discharge of indictment – where appellant fatally shot son-in-law – where appellant initially told lies to police but later confessed to manslaughter – where trial judge gave adaptation of Zoneff direction – where appellant claimed primary judge insufficiently directed jury that lies relevant only to determining credibility – where appellant claimed trial judge failed to put defence case adequately to jury – whether a miscarriage of justice occurred Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, cited Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63, considered R v Chevathen & Dorrick (2001) 122 A Crim R 441; [2001] QCA 337, cited R v Mitchell [2008] 2 Qd R 142; [2007] QCA 267, cited R v Mogg (2000) 112 A Crim R 417; [2000] QCA 244, cited R v Sheppard[2010] QCA 342, considered RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3, cited Simic v The Queen (1980) 144 CLR 319; [1980] HCA 25, cited Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28, considered
COUNSEL:	J J Allen for the appellant D C Boyle for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent