R v Spencer - [2020] QCA 265

SUPREME COURT OF QUEENSLAND

CITATION:

R v Spencer [2020] QCA 265

PARTIES:

R
v
SPENCER, Trevor
(appellant)

FILE NO/S:

CA No 331 of 2019
SC No 1968 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 15 November 2019 (Burns J)

DELIVERED ON:

1 December 2020

DELIVERED AT:

Brisbane

HEARING DATE:

12 October 2020

JUDGES:

Fraser, McMurdo and Mullins JJA

ORDERS:

1.   Appeal allowed.

2.   Conviction set aside.

3.   New trial ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where the appellant was convicted of murder – where the appellant was interviewed by police and there was a recorded conversation between the appellant and a covert police officer – where both the prosecution and defence relied on some of the same evidence in the out of court statements for the purpose of drawing different inferences – where the defence relied on additional statements from the out of court statements not relied on by the prosecution – where the trial judge directed the jury that the answers of the appellant could only be relied on “one way or the other” if the jury “accept[ed] that they were made and … they were true and accurate” – where that was a misdirection in relation to the use of the appellant’s exculpatory statements – whether there was a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where the appellant was convicted of murder – where the alternative prosecution case under s 8 Criminal Code (Qld) was that the appellant actively participated in a common unlawful purpose to assault the deceased whilst armed with weapons – where the second requirement for criminal responsibility under s 8 is that the offence was committed in the “prosecution of that purpose” – whether the jury were sufficiently directed on this second requirement for liability under s 8 – where during the summing up the trial judge interchangeably used the phrases “in carrying out that plan” and “prosecution of that purpose” – whether there was a misdirection

De Silva v The Queen (2019) 94 ALJR 100; [2019] HCA 48, considered
R v Collins, ex parte Attorney-General [1996] 1 Qd R 631; [1994] QCA 467, cited
R v Mitchell [2008] 2 Qd R 142; [2007] QCA 267, cited
R v Phillips and Lawrence [1967] Qd R 237, considered
R v Ritchie[1998] QCA 188, considered

COUNSEL:

C Eberhardt for the appellant
D Balic, with C L Birkett, for the respondent

SOLICITORS:

Jasper Fogerty Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: I agree with the reasons for judgment of Mullins JA and the orders proposed by her Honour.
McMURDO JA: I agree with Mullins JA.
MULLINS JA: Mr Spencer 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 Spencer

Details

AGLC: R v Spencer [2020] QCA 265
Case: [2020] QCA 265
Decision Date: 1 December 2020

CaseChat Overview and Summary

In the matter of R v Spencer, the appellant was convicted of murder and appealed against his conviction and sentence. The appeal hinged on whether there were particular circumstances amounting to a miscarriage of justice, specifically misdirections by the trial judge. The appellant was tried alongside Mark Crump, who pleaded guilty to the murder of the deceased. The deceased was killed in a violent encounter involving the appellant, Crump, and Crump Senior, over a custody dispute for a child.

The court had to determine whether the trial judge’s direction to the jury about the reliability of the appellant’s statements constituted a misdirection. The trial judge directed the jury that the appellant’s answers could only be relied on if they were accepted as true and accurate. The court found that this direction was a misdirection in relation to the use of the appellant’s exculpatory statements. Additionally, the court assessed whether the jury were sufficiently directed on the second requirement for liability under section 8 of the Criminal Code, specifically whether the offence was committed in the prosecution of the common unlawful purpose. The trial judge’s interchangeable use of the phrases “in carrying out that plan” and “prosecution of that purpose” during the summing up was also considered a misdirection.

Given the misdirections, the court concluded that there was a miscarriage of justice. The conviction was set aside, and a new trial was ordered. The appeal was allowed, and the conviction was quashed.

Orders

Orders of the court

1. Appeal allowed.

2. Conviction set aside.

3. New trial ordered.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr Spencer stood trial with Mr Stephen Crump (Crump Senior) who was found not guilty of murder and manslaughter. Before the trial Crump Senior’s son, Mr Mark Crump (Mr Crump), pleaded guilty to the murder of the deceased and that was an admitted fact in Mr Spencer’s trial.Relevant evidence In August 2016, Mr Spencer who was 70 years old and a pensioner lived in Dubbo in New South Wales and was friendly with Mr Crump who was in a relationship with a woman who had previously been in a relationship with the deceased and they had a daughter together (the child). There was an ongoing custody dispute between this woman and the deceased concerning the child and Mr Crump had spent a great deal of money to assist his partner in getting custody of the child. In July 2016 the child did not want to return to live with her mother and made a complaint to the police that Mr Crump had sexually abused her. On 12 August 2016 the Family Court of Australia vacated earlier orders requiring the child to be returned to her mother in New South Wales. In July or August 2016, Mr Spencer told his neighbour Mr Porch that Mr Crump had asked him to ask Mr Porch, if he would go to Queensland with Mr Crump to “bash” or “belt” the deceased. In August 2016 Mr Spencer told Mr Porch that he was going to Sydney with Mr Crump to look for a gun. Between 9 and 11 August 2016 Mr Spencer and Mr Crump stayed in Sydney. Mr Crump recruited Mr Spencer to travel to Queensland with him to secure the child’s return to New South Wales. It was an admission made at the trial that Mr Crump purchased various weapons on eBay and/or at a store in Orange in August 2016 including crossbow, pistols, throwing knives, swords, throwing knife sets and a throwing axe set. Mr Spencer told his neighbour Mr Robinson that he was going with Mr Crump to Queensland and Mr Spencer was away for three to four days. Mr Crump and Mr Spencer met Crump Senior at a hotel in Gin Gin on 21 August 2016. On 22 August 2016 the three men travelled to Mundubbera to conduct a reconnaissance of the deceased’s premises which Mr Spencer said in his interview was so they “knew where to go the next day” for the purpose of talking “some sense” to the deceased and to “tell him to give [the child] back to [the] mother as per Federal Court Orders”. On 23 August 2016 the three men travelled to the deceased’s premises. Initially Mr Crump and Mr Spencer travelled in Mr Crump’s car, but at some point they all got into Crump Senior’s car and Crump Senior drove them to the deceased’s house in Mundubbera. Crump Senior dropped Mr Crump and Mr Spencer off at the premises and drove away. According to Mr Spencer’s statement, just prior to entering the premises Mr Crump gave Mr Spencer a large Crocodile Dundee knife and told him to “bring this in, in case you need it”. At this stage Mr Spencer saw that Mr Crump had the crossbow and a sword and some small knives. Mr Spencer told police that he “probably had an inkling about what [Mr Crump] intending to do” but “was hoping it wouldn’t come to that”. Mr Spencer walked with Mr Crump to the side of the shed on the premises and the deceased came down from the house to speak with them. There was some discussion about the child returning to her mother. Mr Spencer described in his statement that “things went bad” when the deceased told Mr Crump that it had nothing to do with him.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	R v Spencer [2020] QCA 265
PARTIES:	R v SPENCER, Trevor (appellant)
FILE NO/S:	CA No 331 of 2019 SC No 1968 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Conviction: 15 November 2019 (Burns J)
DELIVERED ON:	1 December 2020
DELIVERED AT:	Brisbane
HEARING DATE:	12 October 2020
JUDGES:	Fraser, McMurdo and Mullins JJA
ORDERS:	1. Appeal allowed. 2. Conviction set aside. 3. New trial ordered.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where the appellant was convicted of murder – where the appellant was interviewed by police and there was a recorded conversation between the appellant and a covert police officer – where both the prosecution and defence relied on some of the same evidence in the out of court statements for the purpose of drawing different inferences – where the defence relied on additional statements from the out of court statements not relied on by the prosecution – where the trial judge directed the jury that the answers of the appellant could only be relied on “one way or the other” if the jury “accept[ed] that they were made and … they were true and accurate” – where that was a misdirection in relation to the use of the appellant’s exculpatory statements – whether there was a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where the appellant was convicted of murder – where the alternative prosecution case under s 8 Criminal Code (Qld) was that the appellant actively participated in a common unlawful purpose to assault the deceased whilst armed with weapons – where the second requirement for criminal responsibility under s 8 is that the offence was committed in the “prosecution of that purpose” – whether the jury were sufficiently directed on this second requirement for liability under s 8 – where during the summing up the trial judge interchangeably used the phrases “in carrying out that plan” and “prosecution of that purpose” – whether there was a misdirection De Silva v The Queen (2019) 94 ALJR 100; [2019] HCA 48, considered R v Collins, ex parte Attorney-General [1996] 1 Qd R 631; [1994] QCA 467, cited R v Mitchell [2008] 2 Qd R 142; [2007] QCA 267, cited R v Phillips and Lawrence [1967] Qd R 237, considered R v Ritchie[1998] QCA 188, considered
COUNSEL:	C Eberhardt for the appellant D Balic, with C L Birkett, for the respondent
SOLICITORS:	Jasper Fogerty Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent