R v Bartram - [2013] QCA 361

SUPREME COURT OF QUEENSLAND

CITATION:

R v Bartram [2013] QCA 361

PARTIES:

R
v
BARTRAM, Dianne Yvonne
(appellant/applicant)

FILE NO/S:

CA No 124 of 2013
DC No 10 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

Orders delivered ex tempore 21 November 2013
Reasons delivered 6 December 2013

DELIVERED AT:

Brisbane

HEARING DATE:

21 November 2013

JUDGES:

Muir and Gotterson JJA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Delivered ex tempore on 21 November 2013:

1.   The appeal be allowed.

2.   The appellant’s conviction be set aside.

3.   A retrial be ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the appellant was convicted of one count of unlawful wounding – where the appellant stabbed the complainant, who was collecting his possessions which were stored near the laundry underneath the appellant’s house, with a knife attached to a metal pole – where the complainant had been subject to, and breached, domestic violence orders in favour of the appellant – where, on the morning of the incident, the complainant kicked down a door at the appellant’s residence in breach of a domestic violence order – where, on one view of the evidence, the complainant was armed and refused to leave the premises despite repeatedly being asked to do so – where the jury were directed as to self-defence – where the appellant submits that the trial judge erred in failing to direct the jury on the application of s 267 of the Criminal Code (Qld) (defence of dwelling) – where the respondent submits that the underneath of the residence did not constitute a “dwelling” as defined in s 1 of the Code – whether the appellant was denied a fair chance of acquittal under s 267 of the Code – whether the failure to so direct the jury gave rise to a miscarriage of justice

Criminal Code 1899 (Qld), s 1, s 267, s 668E(1)

Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, cited
R v Coomer [2010] QCA 6, cited
R v Soma (2003) 212 CLR 299; [2003] HCA 13, cited

COUNSEL:

M A Green for the appellant/applicant
P J McCarthy for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant/applicant
Director of Public Prosecutions (Queensland) for the respondent

MUIR JA: Introduction The appellant appeals against her conviction in the District Court at Ipswich on 6 May 2013 of the offence of unlawful wounding. She also sought leave to appeal against her sentence of two years imprisonment with an order for release on parole on 5 May 2014. The application was abandoned. On the hearing of the appeal against conviction, leave was granted to substitute the following as the only ground of appeal:

“There was a miscarriage of…

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 Bartram

Details

AGLC: R v Bartram [2013] QCA 361
Case: [2013] QCA 361
Decision Date: 21 November 2013

CaseChat Overview and Summary

The appellant was convicted of unlawfully wounding the complainant, who was collecting his possessions from under the appellant's house. The incident occurred when the complainant, who had previously breached domestic violence orders in favour of the appellant, kicked down a door at the appellant's residence and refused to leave. The appellant stabbed the complainant with a knife attached to a metal pole. The appellant appealed against the conviction, arguing that the trial judge failed to direct the jury on the defence of dwelling under s 267 of the Criminal Code (Qld), resulting in a miscarriage of justice.

The court had to determine whether the underneath of the residence constituted a "dwelling" under s 1 of the Code, and if the failure to direct the jury on the defence of dwelling denied the appellant a fair chance of acquittal. The respondent contended that the underneath of the residence did not constitute a "dwelling" as defined in the Code. The court considered the evidence and submissions from both parties and assessed the impact of the alleged error on the fairness of the trial.

The court found that the trial judge did not direct the jury on the defence of dwelling, and this omission constituted a significant error. The court held that the underneath of the residence constituted a "dwelling" within the meaning of s 1 of the Code, and the failure to direct the jury on this defence denied the appellant a fair chance of acquittal. The court concluded that the error amounted to a miscarriage of justice, and the appellant was entitled to a retrial.

The court allowed the appeal, set aside the conviction, and ordered a retrial. The decision underscores the importance of proper jury directions in criminal trials, particularly in cases involving complex legal defences such as the defence of dwelling. The outcome highlights the need for trial judges to carefully consider all relevant defences and ensure that the jury is properly directed on their application.

Orders

Orders of the court

Delivered ex tempore on 21 November 2013:

1. The appeal be allowed.

2. The appellant’s conviction be set aside.

3. A retrial be ordered.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Bartram [2013] QCA 361
PARTIES:	R v BARTRAM, Dianne Yvonne (appellant/applicant)
FILE NO/S:	CA No 124 of 2013 DC No 10 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	Orders delivered ex tempore 21 November 2013 Reasons delivered 6 December 2013
DELIVERED AT:	Brisbane
HEARING DATE:	21 November 2013
JUDGES:	Muir and Gotterson JJA and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Delivered ex tempore on 21 November 2013: 1. The appeal be allowed. 2. The appellant’s conviction be set aside. 3. A retrial be ordered.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the appellant was convicted of one count of unlawful wounding – where the appellant stabbed the complainant, who was collecting his possessions which were stored near the laundry underneath the appellant’s house, with a knife attached to a metal pole – where the complainant had been subject to, and breached, domestic violence orders in favour of the appellant – where, on the morning of the incident, the complainant kicked down a door at the appellant’s residence in breach of a domestic violence order – where, on one view of the evidence, the complainant was armed and refused to leave the premises despite repeatedly being asked to do so – where the jury were directed as to self-defence – where the appellant submits that the trial judge erred in failing to direct the jury on the application of s 267 of the Criminal Code (Qld) (defence of dwelling) – where the respondent submits that the underneath of the residence did not constitute a “dwelling” as defined in s 1 of the Code – whether the appellant was denied a fair chance of acquittal under s 267 of the Code – whether the failure to so direct the jury gave rise to a miscarriage of justice Criminal Code 1899 (Qld), s 1, s 267, s 668E(1) Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, cited R v Coomer [2010] QCA 6, cited R v Soma (2003) 212 CLR 299; [2003] HCA 13, cited
COUNSEL:	M A Green for the appellant/applicant P J McCarthy for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant/applicant Director of Public Prosecutions (Queensland) for the respondent