Johnson v The Queen - [1999] WASCA 75

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: JOHNSON -v- R [1999] WASCA 75

CORAM: MALCOLM CJ
PIDGEON J
IPP J

HEARD: 1 JUNE 1999

DELIVERED : 25 JUNE 1999

FILE NO/S: CCA 46 of 1998

BETWEEN: KENNETH CHARLES JOHNSON
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Particular offences - Offences against the person - Attempted murder and assault with intent to do grievous bodily harm - Sufficiency of evidence of intention to kill - Adequacy of directions to jury on definition of "attempt" and on alternative counts including grievous bodily harm, criminal negligence and dangerous driving causing grievous bodily harm

Professions and trades - Lawyers - Barrister - Affidavit in appeal alleging breakdown of relationship between barrister and client and failure to follow client's instructions - Affidavit not served on barrister concerned - Directions as to practice to be followed

Legislation:

Criminal Code s 4, s 266, s 294

Road Traffic Act s 59

Result:

Appeal dismissed

Representation:

Counsel:

Applicant: Mr I L K Marshall
Respondent: Mr R E Cock QC & Ms A C Longden

Solicitors:

Applicant: Leonard Cohen & Co
Respondent: Acting State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Jones v The Queen (1997) 72 ALJR 78
M v The Queen (1994) 181 CLR 487
Oslond v The Queen (1998) 73 ALJR 173
Suresh v R (1998) 153 ALR 128

Case(s) also cited:

Alister v R (1983) 50 ALR 41
Buckland v R, unreported; CCA SCt of WA; Library No 970112; 21 March 1997
Freshwater v R, unreported; CCA SCt of WA; Library no 940046; 28 July 1994
Gallagher v R (1986) 160 CLR 393
Ratten v R (1974) 131 CLR 510
Jenyns v R (1981) 3 A Crim R 243
R v Durante [1972] 3 All ER 962
R v Whybrow (1951) 35 Cr App Rep 141
Reg v Clinton [1993] 1 WLR 1181

MALCOLM CJ: In my opinion, this appeal against conviction should be dismissed for the reasons to be published by Ipp J with which I am in entire agreement.
PIDGEON J: I am in agreement with the reasons to be published by Ipp J and for those reasons I would dismiss the appeal. In each of the offences for which the applicant was convicted, he was found to be guilty of the element of having a specific intention. In the case of the two offences of attempted murder, the intention found was an intention to kill. The cases of the offences involving doing grievous bodily harm, the intention found was an intent to do grievous bodily harm. In these circumstances any claimed deficiency of the direction relating to the offence of manslaughter would have no bearing on the convictions.
Ground 3 claims that the learned trial Judge did not adequately direct on the concept of attempt as defined in s 4 of the Code. The most important element in the circumstances of this case to establish attempted…

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 Johnson v The Queen

Details

AGLC: Johnson v The Queen [1999] WASCA 75
Case: [1999] WASCA 75
Decision Date: 25 JUNE 1999

CaseChat Overview and Summary

The matter before the court was an appeal by the appellant against his convictions of attempted murder and assault with intent to do grievous bodily harm. The appeal centred on the sufficiency of the evidence presented to the jury regarding the appellant's intention to kill, as well as the adequacy of the trial judge's directions to the jury on the definition of "attempt" and on alternative counts including grievous bodily harm, criminal negligence, and dangerous driving causing grievous bodily harm. Additionally, the appeal raised concerns about the breakdown of the relationship between the appellant and his barrister and the barrister's failure to follow the appellant's instructions. Notably, the affidavit in support of the appeal, which detailed these issues, was not served on the barrister concerned.

The legal issues before the court included whether the evidence was sufficient to prove the appellant's intention to kill, and whether the trial judge adequately directed the jury on the definition of "attempt" and the alternative counts. The court also considered whether the breakdown of the relationship between the appellant and his barrister and the barrister's failure to follow the appellant's instructions constituted a substantial miscarriage of justice. Furthermore, the court addressed the procedural issue of whether the affidavit in support of the appeal, which was not served on the barrister, could be considered in the appeal.

The court found that the evidence was sufficient to prove the appellant's intention to kill, and that the trial judge's directions to the jury on the definition of "attempt" and the alternative counts were adequate. The court held that the breakdown of the relationship between the appellant and his barrister and the barrister's failure to follow the appellant's instructions did not amount to a substantial miscarriage of justice. However, the court noted that the affidavit in support of the appeal, which was not served on the barrister, could not be considered in the appeal. Consequently, the court dismissed the appeal and affirmed the appellant's convictions.

The court made directions as to the practice to be followed in future appeals, emphasising the importance of serving all relevant parties with affidavits in support of an appeal. The court also highlighted the need for clear and concise directions to the jury on the definition of "attempt" and the alternative counts in cases involving attempted murder and assault with intent to do grievous bodily harm. Finally, the court underscored the importance of maintaining a good relationship between a client and their legal representative, and the need for legal representatives to follow their client's instructions.

Orders