R v Stewart - [2015] QCA 231

SUPREME COURT OF QUEENSLAND

CITATION:

R v Stewart [2015] QCA 231

PARTIES:

R
v
STEWART, Breck
(appellant)

FILE NO/S:

CA No 208 of 2014
SC No 708 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane – Unreported, 25 July 2014

DELIVERED ON:

17 November 2015

DELIVERED AT:

Brisbane

HEARING DATE:

16 April 2015

JUDGES:

Morrison JA and Atkinson and Applegarth JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted of murder – where the appellant was a drug user who had purchased drugs from the deceased on numerous occasions – where the appellant had run out of money and drugs – where the appellant was angry with the deceased for failing to provide a discount on an earlier drug transaction – where the appellant was in a psychotic and intoxicated state and broke into the deceased’s unit for the purpose of robbing him – where the appellant carried a metal bar with him and used it to assault the deceased in the course of prosecuting the robbery – whether the jury could be satisfied beyond a reasonable doubt that the appellant had the requisite intention to cause death or grievous bodily harm or to rob at the material time – whether the verdict was unreasonable

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the trial judge directed the jury on the issue of the appellant’s alleged unlawful purpose – where the appellant contends that the trial judge erroneously directed the jury to consider the appellant’s intent at the time of entering the deceased’s unit rather than at the time of the assault – where the trial judge did not direct the jury on the definition of “robbery” – where the trial judge did not direct the jury on circumstantial evidence in respect of intent – whether the alleged misdirection and/or failures to direct resulted in a miscarriage of justice

Criminal Code (Qld), s 302(1)(b), s 409, s 668E(1A)

Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; [2012] HCA 14, cited
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29, cited
R v Dolley (2003) 138 A Crim R 346; [2003] QCA 108, cited
R v George [2014] 2 Qd R 150; [2013] QCA 267, cited
R v Georgiou & Ors; Ex parte Attorney-General (Qld) (2002) 131 A Crim R 150; [2002] QCA 206, cited
R v Perera [1986] 1 Qd R 211, cited
R v Simpson [2013] QCA 250, cited
Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56

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 Stewart

Details

AGLC: R v Stewart [2015] QCA 231
Case: [2015] QCA 231
Decision Date: 17 November 2015

CaseChat Overview and Summary

In the matter of R v Stewart, the appellant was convicted of murder and appealed against his conviction. The central issue for the court was whether the jury's verdict was unreasonable or insupportable considering the evidence. Specifically, the court had to determine if the jury could be satisfied beyond a reasonable doubt that the appellant had the requisite intention to cause death or grievous bodily harm or to rob at the time of the assault. The appellant, who was in a psychotic and intoxicated state, broke into the deceased’s unit with the intent to rob him and used a metal bar to assault the deceased during the course of the robbery. The appellant argued that the jury's verdict was unreasonable, and he contested the trial judge's directions concerning his intent and the definition of "robbery".

The court examined the trial judge's directions to the jury and the definition of robbery, as well as the circumstances surrounding the assault. The court found that the jury's verdict was not unreasonable, as the evidence supported the conclusion that the appellant had the necessary intent to cause death or grievous bodily harm or to rob at the time of the assault. The trial judge's directions, although not perfect, did not result in a miscarriage of justice. The appellant's state of intoxication and psychosis, while significant, did not negate the requisite intent for the crime of murder. The court concluded that the jury's verdict was supported by the evidence and did not result in a substantial miscarriage of justice.

In light of the above findings, the appeal was dismissed. The judges unanimously agreed with the reasons provided by Morrison JA, affirming that the appeal should be dismissed. The final order of the court was that the appeal is dismissed.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The first time he was spoken to by police Mr Stewart said that he did not mean to kill Mr Sullivan, and he was breathing when he left.[42] After the formal interview Mr Stewart accompanied police to Kookaburra Park at Moorooka, where he said he had thrown the dumbbell bar, a T-shirt, a shirt which he had ripped up, and Mr Sullivan’s wallet.[43] The dumbbell bar and pieces of the ripped shirt were located where he said he had thrown them.[44][42] AB 135.[43] AB 139–141.[44] AB 151, 153, 154–157, 170.Police interviews and trial evidence What follows is an amalgam of the evidence given at trial, and what was said to police in Mr Stewart’s interviews on 16 and 17 September 2012. Where the evidence differs, in a way that is material to the issues on appeal, that has been or is identified. Mr Stewart was a drug addict who had bought a lot of drugs from Mr Sullivan, spending “a lot of money there over two weeks”.[45] In the nine days prior to 7 September 2012 Mr Stewart saw Mr Sullivan almost every day to buy drugs, except when he ran out of money and had to wait for his Centrelink payment so he could start again.[46] On one day after he had purchased drugs, Mr Sullivan was “really friendly to me”. It was the only day he was like that, and the rest of the time he was “a total fuckwit”.[47] Mr Sullivan walked him to the door, talking about “eight balls”. Mr Stewart understood the conversation to mean that he would be selling drugs. Mr Stewart said he would try to get some money together, and Mr Sullivan said that he would “get you started, or something like that”.[48][45] AB 417.[46] AB 202.[47] AB 418.[48] AB 418. The next day he obtained money from Centrelink and returned to Mr Sullivan’s unit. He tried to get Mr Sullivan to give him more drugs for his money but Mr Sullivan refused, calling him “a pretty bad name”.[49] Mr Stewart felt that Mr Sullivan had gone back on his word.[50] In cross-examination he said that Mr Sullivan “was saying, I’m not going to make you a deal but he’s gone back on what – kind of what he said that – well, he’s forgotten about what we’d spoken about”.[51] Further, he agreed that part of his anger was about being ripped off: “I was just angry… it made me kind of irritable”.[52][49] AB 203, 205.[50] AB 205.[51] AB 236.[52] AB 236. On 6 September Mr Stewart paid $400 for six points, which included an extra one thrown in. He used all the drugs on that day and up to 9.00 am the next morning.[53] He did not sleep between then and 8 September when the incident occurred.[54][53] AB 203–204, 207.[54] AB 205. Mr Stewart said that when Mr Sullivan went back on his word he “started to hear voices” or at least “a voice, and it was outside of my head, and it was it’s not us, it’s not us, it’s not us”. He felt it was “demons talking directly to me”, saying that “… we’ve already ruined your life. This time I promise you it’s not us. Figure it out.” He interpreted that to mean that Mr Sullivan “has no demonic power”.[55][55] AB 205.

Decision

Reasons for decision

Therefore, under s 668E(1A) of the Criminal Code, I have concluded that the guilty verdict of murder has not resulted in a substantial miscarriage of justice.[195][195] Patel v The Queen (2012) 247 CLR 531 at [126]–[128]; Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92 at [27].Conclusion For the reasons given above, the appeal ought to be dismissed. ATKINSON J: I have read the reasons of Morrison JA. I agree that, for those reasons, the appeal should be dismissed. APPLEGARTH J: I agree with the reasons of Morrison JA and with the order proposed by his Honour.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Stewart [2015] QCA 231
PARTIES:	R v STEWART, Breck (appellant)
FILE NO/S:	CA No 208 of 2014 SC No 708 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Brisbane – Unreported, 25 July 2014
DELIVERED ON:	17 November 2015
DELIVERED AT:	Brisbane
HEARING DATE:	16 April 2015
JUDGES:	Morrison JA and Atkinson and Applegarth JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The appeal is dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted of murder – where the appellant was a drug user who had purchased drugs from the deceased on numerous occasions – where the appellant had run out of money and drugs – where the appellant was angry with the deceased for failing to provide a discount on an earlier drug transaction – where the appellant was in a psychotic and intoxicated state and broke into the deceased’s unit for the purpose of robbing him – where the appellant carried a metal bar with him and used it to assault the deceased in the course of prosecuting the robbery – whether the jury could be satisfied beyond a reasonable doubt that the appellant had the requisite intention to cause death or grievous bodily harm or to rob at the material time – whether the verdict was unreasonable CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the trial judge directed the jury on the issue of the appellant’s alleged unlawful purpose – where the appellant contends that the trial judge erroneously directed the jury to consider the appellant’s intent at the time of entering the deceased’s unit rather than at the time of the assault – where the trial judge did not direct the jury on the definition of “robbery” – where the trial judge did not direct the jury on circumstantial evidence in respect of intent – whether the alleged misdirection and/or failures to direct resulted in a miscarriage of justice Criminal Code (Qld), s 302(1)(b), s 409, s 668E(1A) Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; [2012] HCA 14, cited M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29, cited R v Dolley (2003) 138 A Crim R 346; [2003] QCA 108, cited R v George [2014] 2 Qd R 150; [2013] QCA 267, cited R v Georgiou & Ors; Ex parte Attorney-General (Qld) (2002) 131 A Crim R 150; [2002] QCA 206, cited R v Perera [1986] 1 Qd R 211, cited R v Simpson [2013] QCA 250, cited Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56