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R v Witsen

R v Witsen

Case [2008] QCA 316 10 October 2008

Appeal

Miscarriage of Justice

Misdirection and Non-direction

Unreasonable or Insupportable Verdict

Criminal Law

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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 2005

DIVISION:

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 made

ORDER:

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, related

R 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

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 Witsen

Details

AGLC: R v Witsen [2008] QCA 316
Case: [2008] QCA 316
Decision Date: 10 October 2008

CaseChat Overview and Summary

In the case of R v Witsen, the appellant was convicted of murder and appealed against the conviction. The nature of the dispute was whether the jury's verdict was unreasonable, given the circumstances of the case. The appeal was heard in the Queensland Court of Appeal. The legal issues before the court were whether the verdict was unreasonable and whether there was a misdirection or non-direction by the trial judge in relation to the operation of certain sections of the Criminal Code 1899 (Qld).

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Witsen [2008] QCA 316

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 18 of 18 shown

R v Franklin
[2009] HCATrans 221 Para 1

…CLR 378 at 442; Warren and Ireland v R [1987] WAR 314 at 322, 329 – 330; Osland v The Queen (1998) 197 CLR 316 at [16] – [17], [75]; R v Franklin (2001) 3 VR 9 at [55]; R v Cherry [2004] QCA 328 at [110]; R v Lam & Ors [2008] VSCA 109 at [46] – [65].…
R v Lam
[2008] VSCA 109 Para 1

…Osland v The Queen (1998) 197 CLR 316 at [16] – [17], [75]; R v Franklin (2001) 3 VR 9 at [55]; R v Cherry [2004] QCA 328 at [110]; R v Lam & Ors [2008] VSCA 109 at [46] – [65].…
R v Witsen
[2008] QCA 31 Para 1

…the appellant might appeal against his convictions.[1] In the event, the appellant has pursued only the appeal against the conviction for murder. [1][2008] QCA 31.…
R v Brown
[2007] QCA 161 Para 1

…the appellant, who did not actually inflict the fatal blows on the deceased, is the only person to have been convicted of his murder. [2]Cf R v Brown [2007] QCA 161.…
Darkan v The Queen
[2006] HCA 34

…se 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 Post…
R v Cherry
[2004] QCA 328 Para 1

…the appellant, Brown and Fishburn of using violence on the deceased in order to rob him. [11](1996 – 1997) 188 CLR 1 at 10. [12]See also R v Cherry [2004] QCA 328 at [110].…
R v Iliovski & Shnider
[2002] VSCA 172

…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, consider…
R v Franklin
[2001] VSCA 79

…own (2007) 171 A Crim R 345; [2007] QCA 161, related R 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…
R v Lowrie and Ross
[1999] QCA 305

…hed 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 [2008] QCA 31, related Royall v The Queen (1990) 172 CLR 378; [1991] HCA 27, cited The Qu…
Osland v The Queen
[1998] HCA 75

…C 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, related R v Cherry [2004] QCA 328, cited R v Frankli…
R v Ritchie
[1998] QCA 188 Para 1

…ention on the part of Brown and Fishburn to kill or inflict grievous bodily harm on the deceased was shared by the appellant.[15] [15]See R v Ritchie [1998] QCA 188; R v Jervis [1993] 1 Qd R 643 at 655 – 656.…
Postiglione v the Queen
[1997] HCA 26

…, 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, related R v Cherry [2004] QCA 328, cited R v Franklin (2001) 3 VR 9; [2001] VSCA 79, cited R v Iliovski & Shnider (2002…
R v Barlow
[1997] HCA 19

…CA 27, cited The Queen v Darby (1982) 148 CLR 668; [1982] HCA 32, cited The Queen v Barlow (1996-1997) 188 CLR 1; [1997] HCA 19, applied Warren and Ireland v R [1987] WAR 314, cited COUNSEL: P E Smith for the appellant M R Byrne for the respondent SOLICITORS: Fisher Dore Lawyers for the appellant Director of Pub…
Mackenzie v The Queen
[1996] HCA 35

…; [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] Q…
Royall v The Queen
[1991] HCA 27

…red R v Smith [1959] 2 All ER 193, cited R v Witsen [2008] QCA 31, related Royall v The Queen (1990) 172 CLR 378; [1991] HCA 27, cited The Queen v Darby (1982) 148 CLR 668; [1982] HCA 32, cited The Queen v Barlow (1996-1997) 188 CLR 1; [1997] HCA 19, applied Warren and Ireland v R [1987] WAR 314, cited COUNSEL:…
Royall v The Queen
[1990] HCATrans 270 Para 1

…ssment of the situation, the deceased was dying when Brown administered the coup de grace with the hammer. [14] R v Smith [1959] 2 All ER 193 at 198; Royall v The Queen (1990) 172 CLR 378 at 442; Warren and Ireland v R [1987] WAR 314 at 322, 329 – 330; Osland v The Queen (1998) 197 CLR 316 at [16] – [17], [75]; R v Franklin…
R v Darby
[1982] HCA 32

…QCA 31, related Royall v The Queen (1990) 172 CLR 378; [1991] HCA 27, cited The Queen v Darby (1982) 148 CLR 668; [1982] HCA 32, cited The Queen v Barlow (1996-1997) 188 CLR 1; [1997] HCA 19, applied Warren and Ireland v R [1987] WAR 314, cited COUNSEL: P E Smith for the appellant M R Byrne for the respondent SO…
[1992] 1 AC 34
[1992] 1 AC 34

…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] HC…

Legislation cited in this decision · 1

Criminal Code Act 1899 (Qld)
7(1)(c) 1 mention

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 2005
DIVISION:	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 made
ORDER:	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, related R 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