R v Winston - [1994] QCA 137

IN THE COURT OF APPEAL [1994] QCA 137

SUPREME COURT OF QUEENSLAND

Appeal No. 446 of 1993

Before

Fitzgerald P. McPherson JA. Pincus JA.

[R. v. Winston]

BETWEEN:

T H E Q U E E N

Applicant

STEVEN DOUGLAS WINSTON

Fitzgerald P.
McPherson J.A.
Pincus J.A.

Judgment delivered 11/05/94

Joint Reasons for judgment of McPherson and Pincus JJ.A.

Separate Reasons of Fitzgerald P.

APPLICATION FOR LEAVE TO APPEAL GRANTED. APPEAL

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 11/05/94

The circumstances giving rise to this application and the issues which are raised are set out in the judgment of McPherson JA.

There is no appeal by the applicant against his conviction, but it is nonetheless necessary to identify the conduct which constitutes the offence of which he was convicted. This is made more difficult by two considerations.
Firstly, the prosecution narrowed its case to an allegation that the applicant "received" Clarkson and further narrowed it to a receiving (i) into the Holden motor vehicle (ii) at Wappa Falls. Other conduct whereby the jury might have concluded that the applicant assisted Clarkson either at Wappa Falls or elsewhere formed no part of the charge upon which the applicant was convicted.
Secondly, neither the prosecution nor the trial judge in his directions to the jury identified precisely what the applicant was alleged to have done. The prosecution seems to have proved no more in relation to the events at Wappa Falls than that the applicant was a passenger in the vehicle which collected Clarkson. In the absence of any appeal against conviction, it seems reasonable to accept that the jury must have been convinced that the applicant was also a participant in a decision to "receive" Clarkson into the vehicle at Wappa Falls, even though his role otherwise at that location seems to have been entirely passive.

I agree with McPherson JA. that, in sentencing, it was permissible to take into account that the applicant and Clarkson had escaped from prison and were involved in a criminal enterprise when the male victim, John Kelly, was murdered, and that the applicant knew of that murder and at least some of the brutal circumstances when he became an accessory by "receiving" Clarkson into the vehicle at Wappa Falls. I find it difficult to comprehend how, in the circumstances of this matter, the events which took place at the Humes factory can be taken into account against the applicant except as matters of which, or of some of which, he had knowledge. Not only are such matters not the subject of any charge of which he was convicted, but most, at least, are connected with counts on which he was acquitted.

As is pointed out by McPherson JA. on this footing the sentence imposed by the trial judge is excessive. I agree with his Honour's conclusion that it should be set aside and a sentence of imprisonment of eight years substituted. I also agree with the reasons for that conclusion.

JOINT REASONS FOR JUDGMENT…

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 137
Case: [1994] QCA 137
Decision Date: 11/05/1994

CaseChat Overview and Summary

In the case of R v Winston, the applicant, Steven Douglas Winston, sought leave to appeal against his sentence for being an accessory after the fact to the murder of John Kelly. The Court of Appeal granted leave to appeal and varied the sentence. Winston and Clarkson had escaped from prison and committed a series of crimes, including the murder of John Kelly at the Humes Pipe Factory. Winston was found guilty of receiving Clarkson, who was the murderer, at Wappa Falls in order to enable him to escape punishment, knowing of the murder of John Kelly. The trial judge sentenced Winston to imprisonment for 11 years.

The legal issues in this case included whether Winston's role as a passenger in the vehicle into which Clarkson received constituted an active act of assistance, and whether the sentence imposed was excessive. The Court of Appeal found that Winston's role at Wappa Falls was largely passive and did not constitute an active act of assistance. Furthermore, the Court found that the sentence imposed was unduly severe, taking into account the nature of Winston's assistance and his lack of inclination towards violence.

The Court of Appeal varied Winston's sentence, reducing it from imprisonment for 11 years to imprisonment for 8 years, which would continue to be cumulative on any sentence Winston may have been serving when sentenced for this offence on 1 December 1993. The Court also noted that the maximum penalties imposed for being an accessory after the fact to murder were generally fixed at levels equal to approximately half of that imposed for the principal offence committed.

Orders