R v AAP - [2012] QCA 104

SUPREME COURT OF QUEENSLAND

CITATION:

R v AAP [2012] QCA 104

PARTIES:

R
v
AAP
(appellant)

FILE NO/S:

CA No 70 of 2011
SC No 90 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

20 April 2012

DELIVERED AT:

Brisbane

HEARING DATE:

23 March 2012

JUDGES:

McMurdo P, Muir JA, Dalton J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – SUMMING-UP – where the appellant was found guilty after trial of manslaughter, two counts of assault occasioning bodily harm whilst armed in company and common assault – where at the time of offending the appellant was 15 years of age – whether s 8 of the Criminal Code necessitates a consideration of whether or not an ordinary reasonable person in the position of the appellant would have realised that the offences committed were a probable consequence of the prosecution of the unlawful purpose – whether age should be imported into an objective ordinary reasonable person test in the third limb of s 8 of the Criminal Code as it is in cases involving the provocation defence under s 268 and s 304 of the Criminal Code – whether the trial judge erred in not giving the jury directions about factors such as the appellant’s age and life experience in relation to the third limb of s 8 of the Criminal Code

Criminal Code 1899 (Qld), s 8, s 268

R v Keenan (2009) 236 CLR 397, cited
R v Pascoe [1997] QCA 452, cited
Stingel v The Queen (1990) 171 CLR 312, cited
Stuart v The Queen (1974) 134 CLR 426, cited

COUNSEL:

A Glynn SC for the appellant (pro bono)
T Fuller SC for the respondent

SOLICITORS:

No appearance for the appellant
Director of Public Prosecutions (Queensland) for the respondent

MARGARET McMURDO P: I agree with Dalton J that the appeal against conviction should be dismissed.

The sole ground of appeal is that the primary judge erred in directing the jury as to the operation of s 8 Criminal Code 1899 (Qld). The appellant was a 15 year old schoolboy with limited life experience at the time of the killing. The argument is that the judge should have directed the jury to take into account the characteristics of the ordinary reasonable person in the position of the 15 year old appellant when considering whether murder or manslaughter was a probable consequence of the common intention to prosecute an unlawful purpose formed by the appellant in conjunction with one or more of his co-offenders. This follows, the appellant's counsel contended, from the approach taken by courts when directing juries on the partial defence to the offence of murder, provocation, under s 304 Criminal Code as discussed in Stingel v The Queen[1] and R v Mogg.[2]
[1](1990) 171 CLR 312, 329-332.
[2](2000)…

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 AAP

Details

AGLC: R v AAP [2012] QCA 104
Case: [2012] QCA 104
Decision Date: 20 April 2012

CaseChat Overview and Summary

In the matter of R v AAP, the appellant was convicted after a trial for manslaughter, two counts of assault occasioning bodily harm whilst armed in company, and common assault. The appellant was 15 years old at the time of the offences. The central issue before the court was whether section 8 of the Criminal Code requires a consideration of whether an ordinary reasonable person in the appellant's position would have realised that the offences committed were a probable consequence of the prosecution of an unlawful purpose. The court further considered whether age should be imported into an objective ordinary reasonable person test in the third limb of section 8 of the Criminal Code, as it is in cases involving the provocation defence under sections 268 and 304 of the Criminal Code. Additionally, the court evaluated whether the trial judge erred in not giving the jury directions about factors such as the appellant’s age and life experience in relation to the third limb of section 8 of the Criminal Code.

The court analysed the statutory language and compared it to analogous provisions in other parts of the Criminal Code, particularly those concerning provocation. It was determined that the ordinary reasonable person test in section 8 does not explicitly or implicitly require the consideration of age. The court found that the objective test is designed to assess the foreseeability of the consequences of the prosecution of an unlawful purpose from the perspective of an ordinary reasonable person, without the specific inclusion of age. Therefore, the trial judge did not err in not directing the jury to consider the appellant’s age and life experience as part of the ordinary reasonable person test.

In light of the above reasoning, the court dismissed the appeal. The conviction and sentences imposed by the trial court were affirmed. The appeal was dismissed, and the appellant’s convictions and sentences were upheld.

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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CITATION:	R v AAP [2012] QCA 104
PARTIES:	R v AAP (appellant)
FILE NO/S:	CA No 70 of 2011 SC No 90 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	20 April 2012
DELIVERED AT:	Brisbane
HEARING DATE:	23 March 2012
JUDGES:	McMurdo P, Muir JA, Dalton J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – SUMMING-UP – where the appellant was found guilty after trial of manslaughter, two counts of assault occasioning bodily harm whilst armed in company and common assault – where at the time of offending the appellant was 15 years of age – whether s 8 of the Criminal Code necessitates a consideration of whether or not an ordinary reasonable person in the position of the appellant would have realised that the offences committed were a probable consequence of the prosecution of the unlawful purpose – whether age should be imported into an objective ordinary reasonable person test in the third limb of s 8 of the Criminal Code as it is in cases involving the provocation defence under s 268 and s 304 of the Criminal Code – whether the trial judge erred in not giving the jury directions about factors such as the appellant’s age and life experience in relation to the third limb of s 8 of the Criminal Code Criminal Code 1899 (Qld), s 8, s 268 R v Keenan (2009) 236 CLR 397, cited R v Pascoe [1997] QCA 452, cited Stingel v The Queen (1990) 171 CLR 312, cited Stuart v The Queen (1974) 134 CLR 426, cited
COUNSEL:	A Glynn SC for the appellant (pro bono) T Fuller SC for the respondent
SOLICITORS:	No appearance for the appellant Director of Public Prosecutions (Queensland) for the respondent