R v Stevens

Case [2004] QCA 99

SUPREME COURT OF QUEENSLAND

CITATION:

R v Stevens [2004] QCA 99

PARTIES:

R
v
STEVENS, Laurie
(appellant)

FILE NO/S:

CA No 147 of 2003
SC No 189 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

6 April 2004

DELIVERED AT:

Brisbane

HEARING DATE:

26 November 2003

JUDGES:

McMurdo P, Davies JA and Chesterman J
Separate reasons for judgment of each member of the Court, Davies JA and Chesterman J concurring as to the orders made, McMurdo P dissenting in part

ORDERS:

1.    Application for leave to amend the grounds of appeal and to adduce fresh evidence refused

2.    Appeal against conviction dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – FRESH EVIDENCE – AVAILABILITY AT TRIAL; MATERIALITY AND COGENCY – PARTICULAR CASES – MATERIALITY AND COGENCY – EVIDENCE DIRECTED TO CREDIT – where appellant sought leave to amend grounds of appeal and to adduce fresh evidence to support new ground – where fresh evidence would go only to credit of witness – whether such evidence would be admissible – whether evidence would have affected jury verdict – whether leave should be granted to allow amendment to grounds of appeal

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE EVIDENCE CIRCUMSTANTIAL – where appellant convicted of murder on basis of circumstantial evidence – where defences of extraordinary emergency and mistake of fact raised – where verdict of guilty or not guilty of manslaughter not left open to jury – whether it was open to a reasonable jury to be satisfied beyond a reasonable doubt that appellant intended to kill deceased

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – HOMICIDE – MURDER – PRACTICE AND PROCEDURE – ALTERNATIVE VERDICTS – GENERALLY – where appellant convicted of murder on basis of circumstantial evidence – where left to jury as a case of murder or nothing – whether learned primary judge should have left open to jury possibility of verdict of guilty or not guilty of manslaughter pursuant to s 289 Criminal Code

Criminal Code 1899 (Qld), s 23, s 24, s 25, s 289, s 668E(1)

Chidiac & Asfour  v The Queen (1991) 171 CLR 432, cited
Gallagher v The Queen (1986) 160 CLR 392, cited
Gammage v The Queen (1969) 122 CLR 444, cited
Griffiths v The Queen (1994) 69 ALJR 77, distinguished
Jones v The Queen (1997) 191 CLR 439, cited
M v The Queen (1994) 181 CLR 487, cited
Mickelberg v The Queen (1989) 167 CLR 259, cited
Morris v The Queen (1987) 163 CLR 454, cited
Pemble v The Queen (1971) 124 CLR 107, cited
R v Main, ex parte Attorney-General [1999] QCA 148; CA No 387 of 1998, 30 April 1999, cited

COUNSEL:

A J…

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Details
AGLC
R v Stevens [2004] QCA 99
Case
[2004] QCA 99
Decision Date

CaseChat Overview and Summary

In the case of R v Stevens, the appellant sought leave to amend the grounds of appeal and to adduce fresh evidence to support a new ground. The fresh evidence was directed solely at the credibility of a witness. The appellant was appealing against his conviction for murder, which was based on circumstantial evidence. The trial judge had not left open to the jury the possibility of a verdict of guilty or not guilty of manslaughter. The legal issues before the court included whether the fresh evidence would be admissible, whether it would have affected the jury's verdict, and whether the court should grant leave to amend the grounds of appeal.

The court held that the fresh evidence would only go to the credibility of a witness, and such evidence would not be admissible. The court further held that the evidence would not have affected the jury's verdict, as the circumstantial evidence was strong enough to support the appellant's conviction for murder. The court also held that the trial judge's failure to direct the jury on a possible verdict of manslaughter did not miscarry the trial. The court agreed with the primary judge's conclusion that it was open to a reasonable jury to be satisfied beyond a reasonable doubt that the appellant intended to kill the deceased.

The court dismissed the appeal and refused the application for a new trial to allow the admission of fresh evidence. The court held that the appeal brought on the ground that the verdict was unreasonable should be dismissed. The court also held that the application for a new trial should be refused. The court's final orders were to refuse the application for leave to amend the grounds of appeal and to adduce fresh evidence, and to dismiss the appeal against conviction.

Orders

Orders of the court

1. Application for leave to amend the grounds of appeal and to adduce fresh evidence refused

2. Appeal against conviction dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

In my opinion that section can have application only where, on the evidence, there is a possible basis for saying that immediately before the gun discharged it was in the appellant's charge or under his control and that it discharged, killing the deceased because of the appellant's negligence.[21] I have already pointed out, that on the appellant's case, there was no evidence on which the first of such inferences could be drawn.[21]Cf Varley v The King (1976) 51 ALJR 243 at 245; Griffiths v The Queen (1994) 69 ALJR 77 at 79 column 1 E-F, 81 column 1 C; Gilbert v The Queen (2000) 201 CLR 414 at 419, 424; R v Kane (2001) 123 A Crim R 385 at 392, 399; R v Williamson [2000] 1 VR 58 at [45]; R v Phan (2001) 123 A Crim R 30 at 39, 40. It was possible to infer from the circumstantial evidence that the appellant entered the deceased's office in charge of and in control of the gun. But there was no evidence from which it could have been inferred that, whilst in his charge and control, the gun was operated negligently. To use Dr Vallati's evidence, that the gun could discharge if hit, to reach such a conclusion is no more than speculation. There was no evidence, direct or circumstantial from which negligent operation of the gun by the appellant could have been inferred. This case may be distinguished from a case such as Griffiths v The Queen.[22] In that case the defence of accident was raised in the evidence. It was in one of the appellant's confessional statements upon which the prosecution relied to prove that the appellant shot the deceased. Moreover Griffiths was not merely a case of failing to direct on a possible defence but of effectively withdrawing from the jury an issue arising under s 23 of the Criminal Code.[23][22]Griffiths v The Queen (1994) 69 ALJR 77 at 79 column 1 E-F, 81 column 1 C.[23]Griffiths v The Queen (1994) 69 ALJR 77 at 79 column 1 F. Nor do I think that this was a case in which, on some basis other than s 289, a direction should have been given that manslaughter was a possible verdict. On the appellant's case based on his evidence and statements, he did not, except by an act independently of his will, cause the gun to discharge. On the prosecution's circumstantial case he caused the gun to discharge with the intention of killing the deceased. There was no evidence upon which, on any rational basis, it could have been concluded that the appellant intentionally discharged the gun but not with the intention of killing the deceased or causing him grievous bodily harm. For those reasons I disagree with her Honour's conclusion that, because of the learned trial judge's failure to direct the jury on a possible verdict of manslaughter, the trial miscarried. I would, accordingly, dismiss the appeal. CHESTERMAN J: I have read the reasons for judgment prepared by the President and by Davies JA. I agree with their Honours that the appeal brought on the ground that the verdict was unreasonable should be dismissed. I also agree with their Honours that the application for a new trial to allow the admission of fresh evidence should be refused.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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