R v Cleary - [2005] QCA 39

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cleary [2005] QCA 39

PARTIES:

R
v
CLEARY, Graham Shawn
(appellant)

FILE NO/S:

CA No 391 of 2004
DC No 430 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction and Sentence

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

25 February 2005

DELIVERED AT:

Brisbane

HEARING DATE:

11 February 2005

JUDGES:

de Jersey CJ, Jerrard JA and Mackenzie J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal allowed
2. Retrial ordered

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – TESTS – WHETHER JURY WOULD HAVE RETURNED SAME VERDICT – MISDIRECTION AND NON-DIRECTION – where appellant charged with grievous bodily harm – where appellant’s evidence raised the defence of self-defence under s 271(1) of the Criminal Code 1899 (Qld) – where trial judge directed jury that self-defence did not apply in this case – whether the trial judge erred in withholding that defence

Criminal Code 1899 (Qld), s 271, s 668E(1A)

R v Prow (1990) 1 Qd R 64, cited
R v Young (2004) 142 A Crim R 571, cited

COUNSEL:

T Moynihan for the appellant
M R Byrne for the respondent

SOLICITORS:

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

de JERSEY CJ: I have had the advantage of reading the reasons for judgment of Jerrard JA. I agree with the orders proposed by His Honour, and with his reasons.

JERRARD JA: On 19 October 2004 Graham Cleary was convicted by a jury of the offence of having unlawfully done grievous bodily harm to Steven Templeton on 5 August 2003. The learned trial judge sentenced Mr Cleary to three years imprisonment. He has appealed against that conviction, and his counsel argues that appeal on the ground that the learned trial judge erred in failing to let the jury consider defences of self-defence by Mr Cleary, which would have relied on s 271(1) and s 271(2) of the Criminal Code.

Those sections provide as follows:

“271(1) When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for the person to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, if the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm.
(2) If the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm, and the person using force by way of defence believes, on reasonable grounds, that the person cannot otherwise preserve the person defended from death or grievous bodily harm, it is lawful for the person to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous bodily harm.”

The following helpful observations were made McPherson JA…

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 Cleary

Details

AGLC: R v Cleary [2005] QCA 39
Case: [2005] QCA 39
Decision Date: 25 February 2005

CaseChat Overview and Summary

The appellant, in this case, was charged with grievous bodily harm and had raised the defence of self-defence under section 271(1) of the Criminal Code 1899 (Qld). The trial judge, however, directed the jury that self-defence did not apply in this case, leading to the appellant’s conviction. The appellant appealed against the conviction, arguing that the trial judge erred in withholding the self-defence defence from the jury. The appeal was heard in the Court of Appeal in Queensland.

The primary legal issue before the court was whether the trial judge erred in directing the jury that self-defence did not apply in this case. The court was required to determine whether the appellant's evidence raised the defence of self-defence and whether the trial judge's direction to the jury constituted a misdirection or non-direction that could lead to a miscarriage of justice. The court also needed to consider whether the error was so significant that it would have affected the jury's verdict.

The court found that the trial judge erred in directing the jury that self-defence did not apply in this case. The appellant's evidence raised the defence of self-defence, and the trial judge failed to consider this defence when directing the jury. The court held that the error was significant enough to potentially affect the jury's verdict, and therefore, the appellant was entitled to a retrial. The court held that the error was not merely trivial or insignificant, and it was necessary to ensure that the appellant received a fair trial. The appeal was allowed, and a retrial was ordered.

The final orders of the court were to allow the appeal and order a retrial. The court held that the error in the trial judge's direction to the jury was significant enough to potentially affect the jury's verdict, and therefore, the appellant was entitled to a retrial. The court did not impose any further orders or make any additional findings.

Orders

Orders of the court

1. Appeal allowed

2. Retrial 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 Cleary [2005] QCA 39
PARTIES:	R v CLEARY, Graham Shawn (appellant)
FILE NO/S:	CA No 391 of 2004 DC No 430 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction and Sentence
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	25 February 2005
DELIVERED AT:	Brisbane
HEARING DATE:	11 February 2005
JUDGES:	de Jersey CJ, Jerrard JA and Mackenzie J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal allowed 2. Retrial ordered
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – TESTS – WHETHER JURY WOULD HAVE RETURNED SAME VERDICT – MISDIRECTION AND NON-DIRECTION – where appellant charged with grievous bodily harm – where appellant’s evidence raised the defence of self-defence under s 271(1) of the Criminal Code 1899 (Qld) – where trial judge directed jury that self-defence did not apply in this case – whether the trial judge erred in withholding that defence Criminal Code 1899 (Qld), s 271, s 668E(1A) R v Prow (1990) 1 Qd R 64, cited R v Young (2004) 142 A Crim R 571, cited
COUNSEL:	T Moynihan for the appellant M R Byrne for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent