SUPREME COURT OF QUEENSLAND
CITATION:
R v Witsen [2008] QCA 316
PARTIES:
R
v
WITSEN, Justin Paul
(appellant)FILE NO/S:
CA No 191 of 2007
SC No 973 of 2005DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
10 October 2008
DELIVERED AT:
Brisbane
HEARING DATE:
30 September 2008
JUDGES:
Keane JA, Jones and Daubney JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order madeORDER:
Appeal dismissed
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – where the appellant was convicted of murder – where the appellant's responsibility for the murder of the deceased depended upon the jury accepting a theory of responsibility established under either s 7(1)(c) or s 8 of the Criminal Code 1899 (Qld) – where the party responsible for inflicting the fatal blow to the deceased was, following a separate trial, found not guilty of murder but guilty of manslaughter – whether in the circumstances the verdict of guilty for murder returned by the jury was unreasonable
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE – MISDIRECTION AND NON-DIRECTION – where the appellant was convicted of murder – where the appellant's responsibility for the murder of the deceased depended upon the jury accepting a theory of responsibility established under either s 7(1)(c) or s 8 of the Criminal Code 1899 (Qld) – where the learned trial judge below instructed the jury as to the operation of s 7(1)(c) and s 8 of the Criminal Code – whether in the circumstances the directions given by the learned trial judge to the jury as to the operation of these provisions were sufficient
Criminal Code Act 1899 (Qld), s 7(1)(c), s 8
Darkan v The Queen (2006) 227 CLR 373; [2006] HCA 34, applied
Hui Chi-Ming v The Queen [1992] 1 AC 34, cited
Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited
Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75, applied
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, distinguished
R v Brown (2007) 171 A Crim R 345; [2007] QCA 161, relatedR v Cherry[2004] QCA 328, cited
R v Franklin (2001) 3 VR 9; [2001] VSCA 79, cited
R v Iliovski & Shnider (2002) 135 A Crim R 117; [2002] VSCA 172, distinguished
R v Jervis [1993] 1 Qd R 643, cited
R v Lam & Ors [2008] VSCA 109, cited
R v Lowrie & Ross [2000] 2 Qd R 529; [1999] QCA 305, applied
R v Ritchie[1998] QCA 188, considered
R v Smith [1959] 2 All ER 193, cited
R v Witsen
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- AGLC
- R v Witsen [2008] QCA 316
- Case
- [2008] QCA 316
- Decision Date
CaseChat Overview and Summary
The court considered whether the appellant's responsibility for the murder of the deceased depended upon the jury accepting a theory of responsibility established under either s 7(1)(c) or s 8 of the Criminal Code 1899 (Qld). The court noted that the party responsible for inflicting the fatal blow to the deceased was found not guilty of murder but guilty of manslaughter in a separate trial. The court examined the trial judge's instructions to the jury regarding the operation of s 7(1)(c) and s 8 of the Criminal Code, and whether these instructions were sufficient. The court found that the jury's verdict was not unreasonable and that the trial judge's directions were adequate.
As a result, the court dismissed the appeal and upheld the conviction of the appellant. The appeal was dismissed on the basis that the verdict was not unreasonable and that there was no misdirection or non-direction by the trial judge. The court did not find any error in the trial proceedings that would warrant a new trial or an inquiry after conviction.
Orders
Orders of the court
Appeal dismissed
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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