R v Corry

Case [2005] QCA 87

SUPREME COURT OF QUEENSLAND

CITATION:

R v Corry [2005] QCA 87

PARTIES:

R
v
CORRY, Michael James
(appellant)

FILE NO/S:

CA No 306 of 2004
SC No 367 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

1 April 2005

DELIVERED AT:

Brisbane

HEARING DATE:

18 March 2005

JUDGES:

McPherson and Keane JJA and Holmes J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.    Appeal against conviction allowed
2.    Conviction quashed
3.    That there be a re-trial of the appellant on the charge       of murder

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - WHERE GROUNDS FOR INTERFERENCE WITH VERDICT - PARTICULAR CASES - WHERE APPEAL ALLOWED - appellant convicted of murder - learned trial judge directed jury as to self-defence under s 271 Criminal Code - did not refer in summing up to defence under s 272 Criminal Code - trial counsel made no objection to draft summing up provided by learned trial judge - appellant said in police interview that began assault only with intent to scare - whether jury should have been directed as to defence under s 272 - whether it would have been open to the jury to acquit appellant on the basis of s 272 - whether the jury would inevitably have convicted

Criminal Code 1899 (Qld), s 271, s 272, s 668E(1A)

Dhanhoa v The Queen (2003) 77 ALJR 1433, cited
Festa v The Queen (2001) 208 CLR 593, considered
R v Bojovic [1999] QCA 206; [2000] 2 Qd R 183, distinguished
R v Muratovic [1967] Qd R 15, cited
Simic v The Queen (1980) 144 CLR 319, cited
Zecevic v DPP (Vic) (1987) 162 CLR 645, cited

COUNSEL:

P J Callaghan SC for appellant
M J Copley for respondent

SOLICITORS:

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

  1. McPHERSON JA: I agree with what Keane JA has written. There were, in all, three sections of the Code which had a potential to apply to or in the circumstances disclosed in the evidence. They are s 271(1), s 271(2) and s 272.

  1. The learned trial judge directed the jury at some length on the requirements of s 271(1). However, it applies only if the force used by the accused in self defence “is not such as is likely, to cause death or grievous bodily harm”. Here the force used by the appellant was not only likely to cause death or bodily harm to his victim Hingst; it did in fact do so. Hingst was killed. Section 271(1) did not, therefore, afford the appellant any justification or excuse for his act in killing Hingst.

  1. The trial judge also directed the jury on s 271(2). As to it, he said that “there is another provision of the Criminal Code which…

Continue reading R v Corry

Sign in free to access the full text

Details
AGLC
R v Corry [2005] QCA 87
Case
[2005] QCA 87
Decision Date

CaseChat Overview and Summary

The case of R v Corry involved the appellant, who was convicted of murder, appealing against his conviction. The appellant's defence was that he acted in self-defence, but the trial judge only directed the jury on the defence of self-defence under section 271 of the Criminal Code, without mentioning section 272. The appellant argued that the jury should have been directed on the defence of self-defence under section 272 and that it would have been open to the jury to acquit him on the basis of that defence. The appeal was heard in the Queensland Court of Appeal.
The legal issues in this case were whether the jury should have been directed on the defence of self-defence under section 272 of the Criminal Code and whether it would have been open to the jury to acquit the appellant on the basis of that defence. The court also had to consider whether the jury would inevitably have convicted the appellant regardless of any direction on section 272. The court examined relevant authorities, including Dhanhoa v The Queen, Festa v The Queen, R v Bojovic, R v Muratovic, Simic v The Queen, and Zecevic v DPP (Vic).
The court found that the trial judge erred in not directing the jury on the defence of self-defence under section 272 of the Criminal Code. The court held that it would have been open to the jury to acquit the appellant on the basis of that defence, and the error was not a minor or trivial one. The court found that the error had a substantial and significant effect on the outcome of the trial, and it was not possible to say that the error did not affect the verdict. The court concluded that the appeal should be allowed, and the conviction should be quashed. The court ordered a re-trial of the appellant on the charge of murder.
The court's decision in this case highlights the importance of correctly directing the jury on all available defences in a criminal trial. The court found that the failure to direct the jury on the defence of self-defence under section 272 of the Criminal Code was a significant error that affected the outcome of the trial. The court's decision also emphasises the need for trial counsel to object to any errors in the summing up by the trial judge to ensure that the jury is properly directed on all available defences.

Orders

Orders of the court

1. Appeal against conviction allowed

2. Conviction quashed

3. That there be a re-trial of the appellant on the charge of murder

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.