R v Ashman - [2023] QCA 130

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ashman [2023] QCA 130

PARTIES:

R
v
ASHMAN, Jake Scott
(appellant/applicant)

FILE NO/S:

CA No 127 of 2022
SC No 42 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

Supreme Court at Rockhampton – Date of Conviction and Sentence: 27 May 2022 (Davis J)

DELIVERED ON:

20 June 2023

DELIVERED AT:

Brisbane

HEARING DATE:

17 May 2023

JUDGES:

Bowskill CJ and Morrison JA and Henry J

ORDERS:

1. The appeal against conviction is dismissed.

2. The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of murder following a trial before a judge sitting without a jury – where the appellant contended that the evidence of the appellant given at trial could not be rejected beyond reasonable doubt, and therefore that the Crown could not exclude the defence of self-defence beyond reasonable doubt – where the appellant alternatively contended that the verdict was unreasonable as the number and nature of the injuries to the deceased were not such that an intent to kill or do grievous bodily harm was the only reasonable inference open on the evidence – whether the verdict was unreasonable and could not be supported having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where, when sentenced for the offence of murder, the appellant also pleaded guilty to and was convicted of one count of assault occasioning bodily harm, as well as summary offences of burglary, stealing, attempted fraud and wilful damage, which were bound up with the assault, and further charges of burglary, stealing and attempted fraud, which were bound up with the murder – where, three days before the murder, the appellant carried out an unprovoked attack on a female shop assistant, by punching her twice, and the female shop assistant sustained a cut lip – where the appellant had a minor criminal history prior to the offending, with no history of violent offences, and was aged 22 years at the time – where the appellant was sentenced to a concurrent period of 12 months’ imprisonment for the assault occasioning bodily harm, with no additional penalty for the other offences – whether the sentence imposed was manifestly excessive

Criminal Code (Qld), s 688E(1)

Dansie v The Queen (2022) 96 ALJR 728; (2022) 403 ALR 221; [2022] HCA 25, cited
R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, cited
R v Reid [2019] 1 Qd R 63; [2018] QCA 63, cited

COUNSEL:

S J Farnden KC, with E J Coker, for the appellant/applicant (pro bono)
E L Kelso and R Aldas for the respondent

SOLICITORS:

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

BOWSKILL CJ:

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 Ashman

Details

AGLC: R v Ashman [2023] QCA 130
Case: [2023] QCA 130
Decision Date: 20 June 2023

CaseChat Overview and Summary

The case of R v Ashman involved an appeal by the appellant, who was convicted of murder following a trial before a judge sitting without a jury. The appellant contended that the evidence presented at trial could not be rejected beyond reasonable doubt, thereby challenging the Crown's ability to exclude the defence of self-defence beyond reasonable doubt. Additionally, the appellant argued that the verdict was unreasonable, asserting that the number and nature of the injuries to the deceased did not necessarily lead to the inference that the intent to kill or do grievous bodily harm was the only reasonable conclusion based on the evidence. The court was tasked with determining whether the verdict was unreasonable and could not be supported given the evidence.

The court examined the evidence presented at trial, including the appellant's testimony and the circumstances surrounding the death of the deceased. The court considered the appellant's claims regarding the defence of self-defence and the nature of the injuries sustained by the deceased. The court concluded that the evidence was sufficient to reject the appellant's defence beyond reasonable doubt and that the verdict was reasonable and supported by the evidence. The court dismissed the appeal against conviction, finding no grounds to interfere with the verdict.

In addition to the appeal against conviction, the appellant sought leave to appeal against the sentence imposed. The appellant argued that the sentence was manifestly excessive, given that they were sentenced to a concurrent period of 12 months’ imprisonment for the assault occasioning bodily harm, with no additional penalty for the other offences. The court considered the appellant's criminal history, age, and the circumstances of the offending, including the unprovoked attack on a female shop assistant three days prior to the murder. The court found that the sentence was not manifestly excessive and refused the application for leave to appeal against sentence.

The final orders of the court were to dismiss the appeal against conviction and to refuse the application for leave to appeal against sentence. This decision upheld the conviction and sentence imposed by the trial judge, and the appellant's arguments were not successful in securing a reduction in sentence or a new trial.

Orders

Orders of the court

1. The appeal against conviction is dismissed.

2. The application for leave to appeal against sentence is refused.

Background

Background to the litigation

Full text does not contain this section.

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 Ashman [2023] QCA 130
PARTIES:	R v ASHMAN, Jake Scott (appellant/applicant)
FILE NO/S:	CA No 127 of 2022 SC No 42 of 2022
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	Supreme Court at Rockhampton – Date of Conviction and Sentence: 27 May 2022 (Davis J)
DELIVERED ON:	20 June 2023
DELIVERED AT:	Brisbane
HEARING DATE:	17 May 2023
JUDGES:	Bowskill CJ and Morrison JA and Henry J
ORDERS:	1. The appeal against conviction is dismissed. 2. The application for leave to appeal against sentence is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of murder following a trial before a judge sitting without a jury – where the appellant contended that the evidence of the appellant given at trial could not be rejected beyond reasonable doubt, and therefore that the Crown could not exclude the defence of self-defence beyond reasonable doubt – where the appellant alternatively contended that the verdict was unreasonable as the number and nature of the injuries to the deceased were not such that an intent to kill or do grievous bodily harm was the only reasonable inference open on the evidence – whether the verdict was unreasonable and could not be supported having regard to the evidence CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where, when sentenced for the offence of murder, the appellant also pleaded guilty to and was convicted of one count of assault occasioning bodily harm, as well as summary offences of burglary, stealing, attempted fraud and wilful damage, which were bound up with the assault, and further charges of burglary, stealing and attempted fraud, which were bound up with the murder – where, three days before the murder, the appellant carried out an unprovoked attack on a female shop assistant, by punching her twice, and the female shop assistant sustained a cut lip – where the appellant had a minor criminal history prior to the offending, with no history of violent offences, and was aged 22 years at the time – where the appellant was sentenced to a concurrent period of 12 months’ imprisonment for the assault occasioning bodily harm, with no additional penalty for the other offences – whether the sentence imposed was manifestly excessive Criminal Code (Qld), s 688E(1) Dansie v The Queen (2022) 96 ALJR 728; (2022) 403 ALR 221; [2022] HCA 25, cited R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, cited R v Reid [2019] 1 Qd R 63; [2018] QCA 63, cited
COUNSEL:	S J Farnden KC, with E J Coker, for the appellant/applicant (pro bono) E L Kelso and R Aldas for the respondent
SOLICITORS:	No appearance for the appellant/applicant Director of Public Prosecutions (Queensland) for the respondent