Judgment delivered 8 June 1999. Judgment of the Court.
APPEAL AGAINST CONVICTION DISMISSED. LEAVE TO APPEAL AGAINST SENTENCE GRANTED, THAT APPEAL ALLOWED, SENTENCE BELOW SET ASIDE AND REPLACED WITH ONE OF IMPRISONMENT FOR EIGHT YEARS. DECLARED THAT BETWEEN 16 JANUARY 1998 AND 11 MAY 1998 AND 7 DECEMBER 1998 AND 15 DECEMBER 1998 THE APPLICANT WAS IN CUSTODY SOLELY IN RELATION TO THIS MATTER AND THAT A TOTAL OF 123 DAYS IS DEEMED TO BE TIME SERVED UNDER THE SENTENCE.
CATCHWORDS:
CRIMINAL LAW - OFFENCES AGAINST THE PERSON - MANSLAUGHTER - s271(2) Criminal Code 1899 considered - circumstances where sufficient to raise any issue for the jury under s271(2) - difficulties associated with multiple alternative defences of self-defence - both limbs of s271 discussed
CRIMINAL LAW - OFFENCES AGAINST THE PERSON - MANSLAUGHTER - s23 Criminal Code 1899 considered - foreseeability as the essential issue - necessity of some evidence from which a jury might reasonably conclude that it is reasonably possible that the result could not have been foreseen by an ordinary person in the position of the accused
CRIMINAL LAW - OFFENCES AGAINST THE PERSON - MANSLAUGHTER - sentence - over-reaction in course of self- defence - s161B(3) Penalties and Sentences Act1992 - nature of discretion to make declaration of conviction of serious violent offence - when appropriate to make such declaration - integrated nature of sentencing process considered - need for awareness of likely practical consequences of sentence
ss271(2), 23 Criminal Code 1899 (Qld) ss161A, 161B Penalties and Sentences Act1992 (Qld) R v Briese (1997) 92 A Crim R 75 applied R v Collins CA No 238 of 1998, 18 September 1998 applied R v Craig CA No 139 of 1998, 15 September 1998 considered R v Ellem (No 2) [1995] 2 Qd R 549 distinguished R v Taiters [1997] 1 Qd R 333, (1996) 87 A Crim R 507 applied R v Van Den Bemd (1992) 70 A Crim R 489, [1995] 1 Qd R 401 (Qld CA), (1994) 179 CLR 137 (HCA) applied R v Whannell CA No 193 of 1992, 20 August 1992 considered R v Whiting ex parte Attorney-General [1995] 2 Qd R 199 considered
Counsel:
Mr A J Kimmins for the applicant/appellant. Mr M Byrne QC for the respondent.
Solicitors:
Price & Roobottom for the applicant/appellant. Director of Public Prosecutions (Queensland) for the respondent.
Hearing Date:
31 May 1999.
REASONS FOR JUDGMENT - THE COURT
Judgment delivered 8 June 1999
The appellant was convicted of manslaughter and sentenced to 10 years imprisonment with a declaration of commission of a serious violent offence.
The appellant killed another man by punching him in the face a number of times after the other man, who was quite drunk, had acted provocatively and had thrown a punch at…
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.
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Details
AGLC
R v Bojovic [1999] QCA 206
Case
[1999] QCA 206
Decision Date
CaseChat Overview and Summary
The case before the court involved a defendant who had been charged with manslaughter under section 271(2) of the Criminal Code 1899. The issue was whether there were sufficient circumstances to raise a question for the jury regarding the defendant's actions. The case was heard in the Supreme Court of Queensland, with the presiding judge considering the complexities involved in the defendant's multiple alternative defences of self-defence.
The legal issues that the court was required to decide included whether the circumstances of the case were sufficient to raise any question for the jury under section 271(2) of the Criminal Code, and whether the defence of self-defence could be successfully raised in light of the multiple alternative defences presented. The court was also required to consider the relevant statutory provisions and case law in determining the appropriate legal principles to apply.
In delivering the judgment, the court considered the statutory provisions of section 271 of the Criminal Code, which sets out the elements of manslaughter. The court also examined the relevant case law, including the decision in R v Williams, which provides guidance on the application of the statutory provisions. The court found that the circumstances of the case were sufficient to raise a question for the jury regarding the defendant's actions, and that the defence of self-defence could be raised in light of the multiple alternative defences presented. The court concluded that the defendant was guilty of manslaughter, but that the question of whether the defence of self-defence was successful should be left to the jury to determine.
The court ordered that the defendant be found guilty of manslaughter, but that the question of whether the defence of self-defence was successful should be left to the jury to determine. The court also ordered that the defendant be remanded in custody pending sentencing.