R v Breen

Case [2024] QCA 168

SUPREME COURT OF QUEENSLAND

CITATION:

R v Breen [2024] QCA 168

PARTIES:

R
v
BREEN, Christopher Michael
(appellant)

FILE NO/S:

CA No 56 of 2024
DC No 2400 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 13 March 2024 (Chowdhury DCJ)

DELIVERED ON:

10 September 2024

DELIVERED AT:

Brisbane

HEARING DATE:

16 August 2024

JUDGES:

Dalton and Boddice JJA and Wilson J

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of one count of assault occasioning bodily harm, whilst armed – where the only defence left for the jury to consider was defence under s 271 of the Criminal Code – where the defence case was that the complainant had unlawfully assaulted the appellant and any application of force by the appellant was reasonably necessary to defend that unlawful assault – whether a miscarriage of justice was occasioned by the trial judge not directing the jury on the defences of compulsion, provocation and prevention of repetition of insult, as well as honest and mistaken belief as to consent for any assault

Criminal Code (Qld), s 31, s 245

HCF v The Queen (2023) 97 ALJR 978; [2023] HCA 35, applied
R v Pickering[2016] QCA 124, cited
R v Teichmann[2014] QCA 50, cited
Zhou v The Queen [2021] NSWCCA 278, cited

COUNSEL:

S A Lynch for the appellant
J D Finch for the respondent

SOLICITORS:

Owen and Associates for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. DALTON JA:  I agree with the order proposed by Boddice JA and with his reasons.

  2. BODDICE JA:  On 13 March 2024, the appellant was convicted of one count of assault occasioning bodily harm, whilst armed.  He was sentenced to two and a half years’ imprisonment, suspended after serving seven months.

  3. The appellant appeals his conviction.  The sole ground of appeal relied upon is that the trial judge “should have directed the jury on compulsion, provocation, s.24 and consent and prevention of repetition of insult”.

    Trial

  4. The indictment charged the appellant with having, on 6 August 2022, unlawfully assaulted the complainant, thereby doing him bodily harm, whilst armed with a dangerous instrument.

  5. The complainant was a 57 year old male.  The bodily harm was occasioned by contact between the complainant’s head and a star picket held by the appellant.  The dangerous instrument was the star picket.

  6. At trial, there was no dispute that the appellant had struck the complainant several times with the star picket.  At issue was in what areas of his body and in what circumstances.  On the Crown case, that striking included a blow to the top of the complainant’s head, fracturing his skull, in circumstances where the complainant had taken no aggressive actions.  On the defence case, the striking did not include a blow to…

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R v Breen [2024] QCA 168
Case
[2024] QCA 168
Decision Date

CaseChat Overview and Summary

In the matter of R v Breen, the appellant was convicted of one count of assault occasioning bodily harm whilst armed. The crux of the dispute was whether the trial judge should have directed the jury on additional defences, including compulsion, provocation, prevention of repetition of insult, and honest and mistaken belief as to consent for any assault. The appeal hinged on whether the trial judge’s failure to do so constituted a miscarriage of justice. The case presented a stark contrast between the appellant's account of self-defence and the complainant's version of events, which was that the appellant had initiated the assault.

The central legal issue before the court was whether the trial judge erred in not directing the jury on additional defences beyond self-defence. The appellant argued that the trial judge should have instructed the jury on the defences of compulsion, provocation, prevention of repetition of insult, and honest and mistaken belief as to consent. The court had to determine if the evidence presented at trial could reasonably support these defences. The complainant's evidence suggested that the appellant had initiated the assault without provocation, and there was no indication that the appellant had acted out of compulsion, or that he believed his actions were preventing the repetition of an insult, or that there was any honest or mistaken belief of consent.

The court concluded that the trial judge did not err in omitting to direct the jury on the additional defences. The evidence did not support the appellant’s contention that the complainant had provoked or threatened him in a manner that could justify the additional defences. The complainant’s testimony indicated that he only picked up a stick in self-defence after being struck multiple times by the appellant. There was no evidence to suggest that the appellant acted out of compulsion, to prevent the repetition of an insult, or under an honest or mistaken belief of consent. The court found that the trial judge properly directed the jury on self-defence, which was the only defence supported by the evidence.

The appeal was dismissed, and the conviction was upheld.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

At trial, there was no dispute that the appellant had struck the complainant several times with the star picket. At issue was in what areas of his body and in what circumstances. On the Crown case, that striking included a blow to the top of the complainant’s head, fracturing his skull, in circumstances where the complainant had taken no aggressive actions. On the defence case, the striking did not include a blow to the top of the complainant’s head and had taken place in circumstances where the complainant had aggressively approached the appellant, yelling, with clenched fists raised and thereafter, armed himself with a stick, which he poked toward the complainant’s face.EvidenceComplainant The complainant gave evidence that a piece of vacant land separated his property from the appellant’s property. Before 6 August 2022, the appellant had raised a concern about a female on the complainant’s property feeding the native birds. The complainant said he spoke to the appellant by telephone and agreed to have the female cease that activity. The complainant said he also offered to provide power to the appellant, as he knew he did not have power to his caravan on his property. He described the conversation as quite pleasant. The complainant said he had no further interactions with the appellant until 6 August 2022. On that day, he was packing his possessions with his fiancée, when he heard somebody yelling outside. The appellant was standing just off his property, yelling profanities about feeding the birds. The appellant said, “come over here”. When the complainant approached, he asked the appellant what he was talking about, but his response was not clear. It was “a very muffled conversation”.[1][1]AB 80/33. The complainant said as he turned away from the appellant, he was struck, a very, very hard blow to the back of his head, on the side behind his ear. The blow left scars. The complainant turned, in a daze and said, “What the hell was that for?” before being struck again on the head. This blow split his skull open and caused the skin to peel back on his head. At that point he observed the appellant was holding a five foot long star picket. When the complainant turned away again, he was struck behind the legs and across the knee, three or four times. When he turned back towards the appellant, he was again struck. The complainant said he backed away a little towards the middle part of the property. He was telling the appellant to stop. He repeated it several times. The complainant said as he turned to leave the premises he was struck from behind a further four or five times. At that point, the complainant turned towards the appellant. He estimated he was maybe 20 or 30 metres off his property, towards the appellant’s property. The complainant picked up a long piece of stick on the ground, a little bit thicker than the complainant’s thumb, and threatened the appellant. He said he was going to kill him because he was “virtually” killing the complainant. The complainant said he realised the stick was useless against a piece of metal. He threw it to the ground. He may have held it for a minute or so.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Steel agreed that when the complainant was threatening the appellant and Steel, they were on the vacant lot. They were moving back towards the appellant’s property. He agreed that when the complainant swung the stick, he did not strike the appellant, but said he just missed him. Steel said the appellant did not have the star picket before he returned back to his property. The only two times he saw the appellant connect with the complainant with the star picket, was when he got him on the leg and when he blocked the stick, causing the star picket to come into contact with the complainant’s face.Consideration At trial, the central issue, for the jury’s consideration, was the circumstances in which the complainant was struck by the star picket. The trial judge summarised the respective cases thus:“… the defendant gave evidence that the complainant, rushed at him angrily with his fists clenched up, and as a result, the defendant said he defended himself by striking him with the star picket. He then said that he was further assaulted by the complainant picking up a sharp stick and threatening him with the stick. Okay. Obviously, the complainant said he did not have his fists raised and did not rush at the defendant in that manner, and said he only picked up the stick to defend himself after he’d been hit several times with the star picket, particularly on the back of the head and the back of his legs and then, of course, on the top of his head.”[10][10]AB 63/19-27. In that context, it was unsurprising that defence counsel accepted that the jury should be directed as to self-defence against an unprovoked assault, pursuant to s 271 of the Criminal Code and disavowed reliance on any other defence. The defence case was that the complainant had unlawfully assaulted the appellant and any application of force by the appellant was reasonably necessary to defend that unlawful assault. The appellant submits that notwithstanding that concession at trial, there was an obligation on the trial judge to direct the jury on the defences of compulsion, provocation and prevention of repetition of insult, as well as honest and mistaken belief as to consent for any assault. Such an obligation would arise if the evidence was capable of raising such defences. The latter two matters may be quickly disposed of, as there was no basis, to contend that either were capable of arising on the evidence. There was no suggestion in the appellant’s evidence, or in any other evidence led at trial, that the appellant’s actions were undertaken in order to prevent the repetition of an insult. The appellant’s clear evidence was that his actions were in response to an unlawful assault, namely, the threatened violence by the complainant aggressively approaching with raised, clenched fists and arming himself with the stick, poking it in the direction of the appellant’s face. Further, there was not a shred of evidence to support a contention that the appellant struck the complainant in an honest belief that the complainant was consenting to the application of that force.