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R v Andreassen

R v Andreassen

Case [2005] QCA 107 15 April 2005

Appeal

Misdirection and Non-Direction

Self-Defence

Jury Directions

Criminal Law

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Andreassen [2005] QCA 107

PARTIES:

R
v
ANDREASSEN, Jonathon Baird
(appellant)

FILE NO/S:

CA No 334 of 2004
SC No 29 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

15 April 2005

DELIVERED AT:

Brisbane

HEARING DATE:

15 March 2005

JUDGES:

Williams and Keane JJA and Fryberg J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal against conviction dismissed

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - WHERE GROUNDS FOR INTERFERENCE WITH VERDICT - PARTICULAR CASES - WHERE APPEAL DISMISSED - appellant convicted of murder - trial judge directed jury as to self-defence under s 271 Criminal Code - did not refer in summing up to defence under s 272 Criminal Code - jury instructed that defence of self-defence not available if appellant had provoked assault to which he had responded - appellant said in police interview that his actions were in self‑defence - whether jury should have been directed as to defence under s 272 - whether the jury would inevitably have convicted - application of the proviso

Criminal Code 1899 (Qld), s 271, s 272, s 668E(1A)

Dhanhoa v The Queen (2003) 77 ALJR 1433, cited
Festa v The Queen (2001) 208 CLR 593, considered
R v Bojovic [1999] QCA 206; [2000] 2 Qd R 183, cited
R v Corry [2005] QCA 87; CA No 306 of 2004, 1 April 2005, distinguished

COUNSEL:

A J Glynn SC for appellant

D L Meredith for respondent

SOLICITORS:

O'Reilly Stevens Bovey Lawyers (Cairns) for appellant

Director of Public Prosecutions (Queensland) for respondent

WILLIAMS JA: I have had the advantage of reading the reasons for judgment of Keane JA. I agree with all that is said therein and in consequence the appeal must be dismissed.

KEANE JA: The appellant was convicted of the murder of Jason Robert Ryman on 7 April 2003. The sole ground of the appellant's challenge to his conviction now consists of the contention that the learned trial judge erred in failing to direct the jury that the Crown must negative the defence provided by s 272(1) of the Criminal Code 1899 (Qld) beyond reasonable doubt before they could convict the appellant.

Background

In September 2004, the appellant, the deceased and two other men named Rawlings and Limbom, were living at the Barrier Reef Hotel in Cairns. A dispute arose between Rawlings and the appellant and Limbom which led to threats of violence being made by Rawlings and the deceased against Limbom and the appellant, although these threats were not actually made directly by either Rawlings or the deceased to the appellant or Limbom.

On the night of 15 September 2004, the deceased and Rawlings had been drinking in a number of locations before going to the Sports Bar, a…

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 Andreassen

Details

AGLC: R v Andreassen [2005] QCA 107
Case: [2005] QCA 107
Decision Date: 15 April 2005

CaseChat Overview and Summary

The appeal in R v Andreassen involved the appellant, who had been convicted of murder, challenging the correctness of the trial judge's direction to the jury regarding self-defence. The case was heard in the Queensland Court of Appeal. The appellant argued that the trial judge should have instructed the jury on the defence outlined in section 272 of the Criminal Code, in addition to section 271. Section 272 provides for the use of force in self-defence even if the defendant had provoked the assault, provided the response was reasonable in the circumstances.

The legal issues before the court were whether the trial judge erred in not directing the jury on the defence of self-defence under section 272 and whether this omission was a ground for interference with the verdict. The appellant's argument was that the jury should have been directed to consider whether his actions were a reasonable response to the assault, even if he had provoked the confrontation. The court considered the authority of Dhanhoa v The Queen and Festa v The Queen in determining the applicability of section 272 in the context of the jury's directions.

The Court of Appeal held that while there was a misdirection in not referring to section 272, it was not a ground for allowing the appeal. The court reasoned that the jury would inevitably have convicted the appellant of murder, regardless of the potential application of section 272. This conclusion was reached by applying the proviso under section 668E(1A) of the Criminal Code, which requires that the misdirection must have materially affected the verdict. The court distinguished R v Corry and cited R v Bojovic in support of its decision. Consequently, the appeal against the conviction was dismissed.

Orders

Orders of the court

Appeal against conviction dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

R v Andreassen [2005] QCA 107

Most Recent Citation

R v Le [2005] QCA 144

Cases Citing This Decision

R v DBL [2017] QCA 71
Citation 1 (Para 28)

…rror has so affected issues of credibility that the court cannot determine what are the primary facts of the case.” [95][2005] QCA 107, at [31] per Keane J, Williams JA and Fryberg J concurring. [96](2001) 208 CLR 593 at 631-633, [121]-[123].…
R v Smith [2005] QCA 204
Citation 2 (Para 1)

…case, the evidence was not sufficient to raise the issue of self-defence, whether under s 271 or s 272 of the Criminal Code . [4]See R v Andreassen ; [2005] QCA 107; CA No 334 of 2004, 15 April 2005 at [27] - [30]; R v Muratovic [1967] Qd R 15 at 18; Van Den Hock v The Queen (1986) 161 CLR 158 at 161; cf R v Corr…
R v Le [2005] QCA 144
Citation 3 (Para 1)

…ge here did direct the jury on both s 271 and s 272. [18]His defence was that “Ghi left” [19]These appear at AR 1272-1280 [20][2005] QCA 87 [21][2005] QCA 107…

See all citing cases →

Cases Cited

R v Corry [2005] QCA 87
Citation 1

…he Queen (2003) 77 ALJR 1433, cited Festa v The Queen (2001) 208 CLR 593, considered R v Bojovic [1999] QCA 206; [2000] 2 Qd R 183, cited R v Corry [2005] QCA 87; CA No 306 of 2004, 1 April 2005, distinguished COUNSEL: A J Glynn SC for appellant D L Meredith for respondent SOLICITORS: O'Reilly Stevens Bovey Lawy…
Dhanhoa v The Queen [2003] HCA 40
Citation 2 (Para 1)

…1) to the jury. These circumstances would not matter if the appellant was, in truth, denied a fair chance of acquittal.[1] [1]See Dhanhoa v The Queen (2003) 77 ALJR 1433 at 1439 [38].…
Festa v The Queen [2001] HCA 72
Citation 3

…tably have convicted - application of the proviso Criminal Code 1899 (Qld), s 271, s 272, s 668E(1A) Dhanhoa v The Queen (2003) 77 ALJR 1433, cited Festa v The Queen (2001) 208 CLR 593, considered R v Bojovic [1999] QCA 206; [2000] 2 Qd R 183, cited R v Corry [2005] QCA 87; CA No 306 of 2004, 1 April 2005, distinguished CO…
R v Bojovic [1999] QCA 206
Citation 4 (Para 1)

…belief it was necessary for his preservation from death or grievous bodily harm to stab the deceased in the chest with a knife.[3] [3]See R v Bojovic [1999] QCA 206; [2000] 2 Qd R 183 at 185.…
Farrell v The Queen [1998] HCA 50
Citation 5

…e proviso [See, eg, R v Miller (1980) 25 SASR 170; Liberato v The Queen (1985) 159 CLR 507; Green v The Queen (1997) 191 CLR 334; Farrell v The Queen (1998) 194 CLR 286.] illustrates the largely subjective nature of the inquiry, resting as it does on factors such as the error alleged, the relative strength of the pro…
Vincent Raymond Jones v The Queen [1997] HCA 56
Citation 6

…ould not have been contemplated. In M v The Queen [(1994) 181 CLR 487 at 494, cited and applied by Gaudron, McHugh and Gummow JJ in Jones v The Queen (1997) 191 CLR 439 at 451.] Mason CJ, Deane, Dawson and Toohey JJ said: 'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also…
Green v The Queen [1997] HCA 50
Citation 7

…cases dealing with the application of the proviso [See, eg, R v Miller (1980) 25 SASR 170; Liberato v The Queen (1985) 159 CLR 507; Green v The Queen (1997) 191 CLR 334; Farrell v The Queen (1998) 194 CLR 286.] illustrates the largely subjective nature of the inquiry, resting as it does on factors such as the error a…
Jones v The Queen [1997] HCA 12
Citation 8

…such an approach would not have been contemplated. In M v The Queen [(1994) 181 CLR 487 at 494, cited and applied by Gaudron, McHugh and Gummow JJ in Jones v The Queen (1997) 191 CLR 439 at 451.] Mason CJ, Deane, Dawson and Toohey JJ said: 'In most cases a doubt experienced by an appellate court will be a doubt which a jur…
M v the Queen [1994] HCA 63
Citation 9

…er there is a reasonable doubt as to the accused's guilt. Even thirty years ago, such an approach would not have been contemplated. In M v The Queen [(1994) 181 CLR 487 at 494, cited and applied by Gaudron, McHugh and Gummow JJ in Jones v The Queen (1997) 191 CLR 439 at 451.] Mason CJ, Deane, Dawson and Toohey JJ sai…
Wilde v the Queen [1988] HCA 6
Citation 10

…onvicted an accused ultimately falls to be determined by the relevant court according to its assessment of the facts of the case. [ Wilde v The Queen (1988) 164 CLR 365 at 372.] The prevalence of dissenting views in cases dealing with the application of the proviso [See, eg, R v Miller (1980) 25 SASR 170; Liberato v…
Liberato v The Queen [1985] HCA 66
Citation 11

…The prevalence of dissenting views in cases dealing with the application of the proviso [See, eg, R v Miller (1980) 25 SASR 170; Liberato v The Queen (1985) 159 CLR 507; Green v The Queen (1997) 191 CLR 334; Farrell v The Queen (1998) 194 CLR 286.] illustrates the largely subjective nature of the inquiry, resting as…
Simic v The Queen [1980] HCA 25
Citation 12

…y, 'acting reasonably' and properly directed. As Brennan, Dawson and Toohey JJ stated in Wilde [(1988) 164 CLR 365 at 373. See also Simic v The Queen (1980) 144 CLR 319 at 331.]: 'In the end no mechanical approach can be adopted and each case must be determined upon its own circumstances.'…

Legislation Cited

No legislation cited in this judgment.

CITATION:	R v Andreassen [2005] QCA 107
PARTIES:	R v ANDREASSEN, Jonathon Baird (appellant)
FILE NO/S:	CA No 334 of 2004 SC No 29 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	15 April 2005
DELIVERED AT:	Brisbane
HEARING DATE:	15 March 2005
JUDGES:	Williams and Keane JJA and Fryberg J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal against conviction dismissed
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - WHERE GROUNDS FOR INTERFERENCE WITH VERDICT - PARTICULAR CASES - WHERE APPEAL DISMISSED - appellant convicted of murder - trial judge directed jury as to self-defence under s 271 Criminal Code - did not refer in summing up to defence under s 272 Criminal Code - jury instructed that defence of self-defence not available if appellant had provoked assault to which he had responded - appellant said in police interview that his actions were in self‑defence - whether jury should have been directed as to defence under s 272 - whether the jury would inevitably have convicted - application of the proviso Criminal Code 1899 (Qld), s 271, s 272, s 668E(1A) Dhanhoa v The Queen (2003) 77 ALJR 1433, cited Festa v The Queen (2001) 208 CLR 593, considered R v Bojovic [1999] QCA 206; [2000] 2 Qd R 183, cited R v Corry [2005] QCA 87; CA No 306 of 2004, 1 April 2005, distinguished
COUNSEL:	A J Glynn SC for appellant D L Meredith for respondent
SOLICITORS:	O'Reilly Stevens Bovey Lawyers (Cairns) for appellant Director of Public Prosecutions (Queensland) for respondent