R v Winston - [1994] QCA 484

IN THE COURT OF APPEAL [1994] QCA 484

SUPREME COURT OF QUEENSLAND

C.A. No. 229 of 1994

Brisbane

[R. v. Winston]

THE QUEEN

STEVEN DOUGLAS WINSTON

Appellant

Macrossan CJ
Pincus JA
Ambrose J

Judgment delivered 17/11/1994

Reasons for Judgment - The Court

Appeal against conviction dismissed

CATCHWORDS:CRIMINAL LAW - conviction - accessory after the fact - appellant convicted of receiving murderer - meaning of receives - whether positive act required - meaning of positive act discussed - s.10 Criminal Code

Counsel:

Mr J.F. Claire for the Appellant

Mr D. Bullock for the Crown

Solicitors:

Legal Aid Office (Qld) for the Appellant

Director of Prosecutions for the Respondent

Hearing Date:25/08/94

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 17/11/1994

The appellant seeks to challenge his conviction under s.10 of the Criminal Code on a charge of receiving one Clarkson in order to enable him to escape punishment knowing that he had murdered John Kelly. The Code section provides for an offence which corresponds to what at Common Law has been embraced by the concept of accessory after the fact, a description which appears in the heading to the Code section. The portion of Section 10 relevant for our purposes reads as follows:

"Accessories after the fact. A person who receives or assists another who is, to his knowledge, guilty of an offence, in order to enable him to escape punishment, is said to become an accessory after the fact to the offence."

The appellant previously successfully appealed against the sentence imposed upon his conviction and a term of eight years imprisonment was substituted for that of eleven years imposed by the trial judge. Time for appeal being extended, the appellant now seeks to challenge the conviction itself.

At the trial the appellant, on an indictment containing a number of counts, had been charged with the murder of two persons, John Kelly and Olveena Kelly who performed duties as security guards at a Yandina depot conducted by Humes Pipes. He was found not guilty on those murder charges. Two alternative counts were included in the indictment charging the appellant as accessory after the fact in that knowing that Clarkson had murdered each of the two persons killed, he received Clarkson in order to enable him to escape punishment. He was found guilty as accessory in respect of Clarkson's murder of John Kelly, and not guilty in respect of Olveena Kelly's murder.

The trial judge ruled and then directed the jury that the appellant could be regarded as having "received" Clarkson when, at a time after Clarkson had murdered John Kelly at the depot, the appellant, in a vehicle driven by another man, Ferguson, had followed a vehicle driven by Clarkson from the depot to a location near Wappa Falls and Clarkson entered the vehicle containing Ferguson and the appellant. The Crown case was that the receiving occurred at this spot when Clarkson was admitted into the following vehicle and then driven towards the house where Clarkson, Ferguson, the appellant, and…

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 Winston

Details

AGLC: R v Winston [1994] QCA 484
Case: [1994] QCA 484
Decision Date: 17/11/1994

CaseChat Overview and Summary

The appellant, Steven Douglas Winston, was convicted of being an accessory after the fact in relation to the murder of John Kelly by Clarkson, under Section 10 of the Criminal Code. Winston appealed against his conviction, arguing that he did not actively participate in the act of receiving Clarkson at Wappa Falls. The Supreme Court of Queensland's Court of Appeal reviewed the case to determine if Winston's actions constituted a receiving under Section 10 of the Criminal Code.

The primary legal issue was whether Winston's involvement in following and collecting Clarkson at Wappa Falls amounted to a 'receiving' under Section 10 of the Criminal Code. The court examined whether Winston's actions constituted a positive act of assistance, considering that Section 10 requires an active act of assistance. The court also considered the intent of Winston and his accomplice, Ferguson, to assist Clarkson in escaping punishment for the murder.

The Court of Appeal held that Winston's actions, when viewed in the context of his and Ferguson's plan to follow and collect Clarkson, constituted a positive act of assistance. The court found that Winston's participation, although not driving the vehicle, was sufficient to establish a receiving under Section 10. The court emphasised that receiving involves an act of acceptance and positive support for the offender. The jury was entitled to find that Winston's presence in the vehicle with Ferguson constituted the necessary positive act of assistance, making them both accessories after the fact.

The appeal against Winston's conviction was dismissed, affirming his conviction as an accessory after the fact. The court concluded that Winston's actions, in conjunction with Ferguson's, met the requirement of a positive act of assistance under Section 10 of the Criminal Code.

Orders