England v Queen

[2001] FCA 1722

FEDERAL COURT OF AUSTRALIA

England v Queen [2001] FCA 1722

CRIMINAL LAW – appeal against conviction – manslaughter – death followed two distinct fights between accused and deceased – causation – cause of death established as subarachnoid haemorrhage – alleged error in trial Judge’s conclusion that the deceased’s death was caused by a blow inflicted in the second incident rather than in the first incident.

CRIMINAL LAW – manslaughter – self-defence, whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did – where the accused person raising a plea of self-defence was the original aggressor – standard and onus of proof.

CRIMINAL LAW – appeal against sentence – manslaughter – severity of sentence – sentenced to seven years’ imprisonment, with a non-parole period of four years – factors to be taken into account.

Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645, applied
R v Williams [2000] NSWCCA 136, considered
R v Kenta No SCC 81 of 1987, distinguished
R v Gunn (SC of Victoria 1617 of 1993), considered
R v Risteski [1999] NSWSC 1248, distinguished
R v Khouzame [2000] NSWCCA 505, considered

BARRY JOSEPH ENGLAND v THE QUEEN

A 23 of 2001

BLACK CJ, SPENDER & DOWSETT JJ
21 DECEMBER 2001
BRISBANE VIA VIDEO LINK (HEARD IN CANBERRA)

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

A 23 OF 2001

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:	BARRY JOSEPH ENGLAND APPELLANT
AND:	THE QUEEN RESPONDENT
JUDGES:	BLACK CJ, SPENDER & DOWSETT JJ
DATE OF ORDER:	21 DECEMBER 2001
WHERE MADE:	BRISBANE VIA VIDEO LINK (HEARD IN CANBERRA)

THE COURT ORDERS THAT:

1.        The appeal against conviction be dismissed.

2.        The appeal against sentence also be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A 23 OF 2001

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:	BARRY JOSEPH ENGLAND APPELLANT
AND:	THE QUEEN RESPONDENT

JUDGES:	BLACK CJ, SPENDER & DOWSETT JJ
DATE:	21 DECEMBER 2001
PLACE:	BRISBANE VIA VIDEO LINK (HEARD IN CANBERRA)

REASONS FOR JUDGMENT

THE COURT

1. The appellant was charged with unlawfully killing Bradley John Stewart on 1 January 2000.  He was tried and convicted before Miles CJ, sitting without a jury.  The Chief Justice sentenced him to imprisonment for seven years, fixing a non-parole period of four years to date from 24 April 2001.  The appellant appeals both against his conviction and the sentence.  An alleged co-offender, Christopher Culshaw was also charged and pleaded guilty.  Culshaw’s appeal against sentence was heard with this appeal, and we are publishing separate reasons in connection with it.  It will, however, be necessary to refer to those reasons when we come to deal with this appellant’s appeal against sentence. 

   OUTLINE OF EVENTS

2. The appellant, Christopher Culshaw, his brother, Peter and others spent New Year’s…