R v Carlton

Case [2018] QCA 294

SUPREME COURT OF QUEENSLAND

CITATION:

R v Carlton [2018] QCA 294

PARTIES:

R
v
CARLTON, Lawrence Keith
(appellant)

FILE NO/S:

CA No 161 of 2016
SC No 688 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 17 May 2016 (Douglas J)

DELIVERED ON:

30 October 2018

DELIVERED AT:

Brisbane

HEARING DATE:

28 August 2018

JUDGES:

Morrison and Philippides JJA and Bowskill J

ORDER:

The appeal against conviction is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of the murder of the deceased, whose death was caused by a large incised wound across the front of his neck, caused by a knife – where it was not in issue that the appellant killed the deceased – where the appellant’s case at trial was that he had struck the deceased a blow, as a reaction to being struck by the deceased, not realising that he was still holding a knife that had fallen from the deceased and which the appellant had just picked up – where the issues at the trial were whether the appellant had the requisite intention, to kill or cause grievous bodily harm, at the time of the killing and whether the killing was unlawful, because it was not justified or excused as self-defence, accident or the result of provocation – where there was evidence from a co-offender, who pleaded guilty to being an accessory after the fact and interference with a corpse, of a physical altercation between the appellant and the deceased, but not that he had witnessed the cut to the deceased’s throat – where there was evidence from a forensic pathologist who conducted the post-mortem examination that he could not conceive of the injury to the deceased’s neck being caused by a punching type mechanism with a knife, as contended by the appellant – whether it was reasonably open to the jury to find beyond reasonable doubt that the act which caused the deceased’s death did not occur in the circumstances contended by the appellant – whether it was reasonably open to the jury to find beyond reasonable doubt that the appellant intended to kill the deceased, or cause him grievous bodily harm, at the time of the act which caused death

CRIMINAL LAW – APPEAL AND NEW TRIAL –PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – CONSIDERATION OF SUMMING UP AS A WHOLE – where the appellant contends that two sentences in a lengthy and complex summing up to the jury, and a third sentence in a series of powerpoint slides outlining a possible course of deliberations, erroneously suggested that if the appellant intended to kill the deceased, or cause him grievous bodily harm, he was necessarily guilty of murder, and the defence of self-defence would not apply – whether any basis to conclude that the three isolated sentences could have misled the…

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AGLC
R v Carlton [2018] QCA 294
Case
[2018] QCA 294
Decision Date

CaseChat Overview and Summary

The appellant appealed against his conviction of the murder of the deceased, whose death was caused by a large incised wound across the front of his neck, caused by a knife. The appellant argued that he had struck the deceased as a reaction to being struck by the deceased, not realising that he was still holding a knife that had fallen from the deceased and which the appellant had just picked up. The issues at trial were whether the appellant had the requisite intention, to kill or cause grievous bodily harm, at the time of the killing and whether the killing was unlawful, because it was not justified or excused as self-defence, accident or the result of provocation. The court examined the evidence presented at trial, including the appellant’s changing story in police interviews and evidence from a co-offender and a forensic pathologist, to determine whether it was reasonably open to the jury to find beyond reasonable doubt that the act which caused the deceased’s death did not occur in the circumstances contended by the appellant and whether it was reasonably open to the jury to find beyond reasonable doubt that the appellant intended to kill the deceased, or cause him grievous bodily harm, at the time of the act which caused death.

The court considered the grounds of appeal, including whether there was a misdirection or non-direction in the summing up to the jury regarding the operation of self-defence and whether the directions given to the jury as to the use they could make of post-offence conduct were sufficient. The court examined the directions given to the jury and determined that they were not misleading and that it was reasonably open to the jury to find beyond reasonable doubt that the appellant intended to kill the deceased, or cause him grievous bodily harm, at the time of the act which caused death. The court also determined that the directions given to the jury as to the use they could make of post-offence conduct were sufficient.

The appeal against conviction is dismissed.

Orders

Orders of the court

The appeal against conviction is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Although this ground was argued on a relatively narrow basis, as will be explained below, it is nevertheless necessary to undertake an examination of the whole of the evidence before the jury in order to deal with it.The evidence at the trial At the trial, it was not in dispute that Mr Klaassen was dead and that the appellant killed him. The issues at the trial included whether the appellant had an intention to kill or to do grievous bodily harm, and whether defences of self-defence, provocation or accident applied. The appellant contended that he had struck Mr Klaassen a blow, as a reaction to being struck by Mr Klaassen, not realising that he was still holding a knife that had fallen from Mr Klaassen and which the appellant had picked up. The appellant argues on this appeal that it was not reasonably open to the jury to find beyond reasonable doubt that the act which caused Mr Klaassen’s death did not occur in those circumstances; nor to find beyond reasonable doubt that the appellant intended to kill Mr Klaassen, or cause him grievous bodily harm, at the time of the act which caused his death. Mr Klaassen was killed on 29 July 2013. He was reported missing by family members in mid-August 2013, following which a police investigation commenced, leading to the appellant.[3][3] AR 32-33 (Detective Sergeant Bosgra). The appellant did not give or call evidence at the trial. But the evidence included recordings of a number of interviews the appellant had with police, covering a period of about eight hours, in the course of which the appellant’s story changed a number of times.[4][4]The jury were provided with transcripts of the interviews, as an aid to listening to the interviews, and defence counsel accepted it was appropriate for the jury to have access to the transcripts throughout the trial – AR 31, also 346-347. References below are to pages of the transcripts, which were marked for identification, where they appear in the appeal record book. The first interview took place in the early hours of the morning on 13 September 2013, when police went to a property at Chambers Flat Road, Logan Reserve and spoke to the appellant, asking him to accompany them back to the police station. He did so, and was then interviewed at the police station. The appellant told police the last time he saw Mr Klaassen was on a day when he and another person went to a unit at Underwood to help someone called Eddie (the appellant’s partner’s brother) move his things out. This was said to be Sophie’s place (Sophie being Eddie’s girlfriend at the time). He said he had not seen Mr Klaassen since, and did not know where Mr Klaassen was now.[5][5] AR 489-490, 502, 508, 511. The appellant had earlier, on 28 August 2013, provided a sworn statement to police in which he said he had not seen or heard anything of Mr Klaassen since he saw him when moving Eddie out, and said “I don’t know what has happened to Mick, but I hope that he is okay and come home for his family’s sake”.[6][6]Exhibit 45, formal admissions, paragraph 10; AR 883. Although paragraph 10 of exhibit 45 refers to 28 August 2015, the correct date must be 28 August 2013, since the statement was given to police prior to the appellant being interviewed by police, which was in September 2013.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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