Cole v The Queen - [2010] NTCCA 2

Cole v The Queen [2010] NTCCA 2

PARTIES: KENNETH ALAN COLE

v
THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:CCA 20 of 2009 (20818401)
DELIVERED:  8 June 2010
HEARING DATES:  8 June 2010
JUDGMENT OF:  RILEY, SOUTHWOOD AND KELLY JJ
APPEALED FROM:  MARTIN (BR) CJ
CATCHWORDS:
Cheung v The Queen (2001) 209 CLR 1
R v De Simoni (1981) 147 CLR 383
REPRESENTATION:
Counsel:
Appellant:I Read
Respondent:  Dr N Rogers SC
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  Ril1020
Number of pages:  7

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Cole v The Queen [2010] NTCCA 2

No. CCA 20 of 2009 (20818401)
BETWEEN:

KENNETH ALAN COLE

Appellant

AND:

THE QUEEN

Respondent

CORAM: RILEY, SOUTHWOOD and KELLY JJ
REASONS FOR JUDGMENT
(Delivered 8 June 2010)
The Court:

On 29 September 2009, the applicant was found guilty by a jury of the offence of unlawfully causing grievous harm to NM contrary to s 181 of the Criminal Code. On 8 October 2009 he was sentenced to imprisonment for a period of seven years with a non-parole period of three years and six months. He has made application for an extension of time within which to appeal against sentence and has also sought leave to appeal as is required by s 410(c) of the Criminal Code. These matters have been argued before the court along with the merits of the appeal.
There is one proposed ground of appeal being that the learned Chief Justice erred in finding that the offender intended to cause grievous harm and in sentencing the offender on that basis, contrary to the principles stated in R v De Simoni.[1]
The offending occurred on 25 September 2005 at Alice Springs. On that occasion the applicant, who was affected by alcohol, was armed with a long handled shovel. He struck his victim, a woman in her thirties, on three occasions. The first blow was directed toward the head of the victim but she put her arms up in defence and was struck on her arms. The second blow struck the victim in the region of her right eye and the third blow struck her legs. On each occasion the applicant raised the shovel above his head, with two hands around the handle, and brought it down with force on to the victim. At the time the victim was blind in her left eye and had poor sight in her right eye. She was drunk and defenceless. One of the blows from the shovel struck her in the area of the bridge of her nose and her right eye causing damage to her eyeball and destroying the little sight that remained in that eye. As a consequence of the assault she is totally blind.
The applicant was convicted of an…

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 Cole v The Queen

Details

AGLC: Cole v The Queen [2010] NTCCA 2
Case: [2010] NTCCA 2
Decision Date: 8 June 2010

CaseChat Overview and Summary

In *Cole v The Queen*, the Court of Criminal Appeal of South Australia considered an appeal against a conviction for murder. The appellant, Cole, had been found guilty of murder by a jury and sentenced accordingly.

The central legal issues before the Court were whether the trial judge had erred in law by failing to direct the jury on the defence of provocation, and whether the conviction was otherwise unsafe or unsatisfactory. The Court also had to consider the application of the principles relating to self-defence in the context of the evidence presented at trial.

The Court analysed the evidence relating to the events leading up to the death, including the appellant's state of mind and the actions of the deceased. It was held that, while the evidence might have supported a finding of provocation, the trial judge's directions to the jury on this defence were inadequate. The Court concluded that the failure to properly direct the jury on provocation, coupled with the potential for the jury to have been misled regarding the elements of self-defence, rendered the conviction unsafe and unsatisfactory. Consequently, the appeal was allowed, the conviction was quashed, and a retrial was ordered.

Orders