R v Cowan - [2005] QCA 424

SUPREME COURT OF QUEENSLAND

CITATION: R v Cowan [2005] QCA 424
PARTIES: R
v
COWAN, Nathaniel Zyvan
(appellant)

FILE NO/S:

CA No 86 of 2005 SC No 25 of 2005
DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction
ORIGINATING
COURT: Supreme Court at Brisbane
DELIVERED ON: 18 November 2005
DELIVERED AT: Brisbane
HEARING DATE: 1 September 2005
JUDGES: McMurdo P, Jerrard JA and Fryberg J
Separate reasons for judgment of each member of the Court,
McMurdo P and Jerrard JA concurring as to the orders made,
Fryberg J dissenting
ORDER:

1. The appeal against the conviction for entering
premises with intent whilst armed is dismissed
2. The appeal against the conviction for murder is
allowed. The conviction is quashed. A new trial is
ordered

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - appellant convicted after trial of both entering premises with intent to commit an indictable offence whilst armed and murder - at close of prosecution case defence counsel submitted provocation was raised on prosecution case - after appellant gave evidence defence counsel indicated he did not think he would be pursuing provocation as an issue - defence counsel did not request provocation be left for the jury's consideration or address or seek redirections on the issue of provocation - trial judge summed up defence case on basis of self-defence only - alternative verdict of manslaughter left for the jury's consideration solely on the basis that if the jury rejected self-defence and were satisfied that the appellant caused the death but were not satisfied that he intended to kill or do grievous bodily harm to the deceased they would convict the appellant of manslaughter only - whether there was evidence capable of raising the issue of provocation - whether the evidence raised the possibility that the appellant may have lost self-control, whether through fear, anger, panic or a combination of all these factors when he killed the deceased - whether trial judge erred in not directing the jury on the issue of provocation - whether appellant deprived of the opportunity of an acquittal of murder

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION - POWER TO ORDER NEW TRIAL OR QUASH CONVICTION AND DIRECT ENTRY OF JUDGMENT OF ACQUITTAL - where appellant convicted after trial of murder - whether trial judge erred in not directing the jury on the issue of provocation - whether Court of Appeal can record a conviction for manslaughter and order a retrial only on the offence of murder - whether Court of Appeal limited to either ordering a new trial on murder under s 669 Criminal Code 1899 (Qld) or substituting a verdict of guilty for manslaughter under s 668F(2) Criminal Code 1899 (Qld)
Criminal Code 1899 (Qld), s 304, s 668E, s 668F, s 669
Hughes v The King (1951) 84 CLR 170

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 Cowan

Details

AGLC: R v Cowan [2005] QCA 424
Case: [2005] QCA 424
Decision Date: 18/11/2005

CaseChat Overview and Summary

The case of R v Cowan involved the appellant who was convicted after a trial of entering premises with intent to commit an indictable offence while armed and of murder. The appellant appealed against his conviction and sentence, arguing that the trial judge had erred in not directing the jury on the issue of provocation. The appeal was heard by the High Court of Australia. The central issue before the court was whether the trial judge erred in not directing the jury on the issue of provocation, which could have provided the appellant with an opportunity for an acquittal of murder. Specifically, the court had to determine whether the evidence presented was capable of raising the issue of provocation and if the evidence suggested that the appellant may have lost self-control when he killed the deceased.

The court considered the submissions of both parties and examined the evidence presented at trial. It was noted that at the close of the prosecution case, the defence counsel submitted that provocation had been raised. However, after the appellant gave evidence, the defence counsel indicated they did not think they would be pursuing provocation as an issue. The defence counsel did not request that provocation be left for the jury's consideration, nor did they address or seek redirections on the issue of provocation. The trial judge summarised the defence case on the basis of self-defence only, and left the alternative verdict of manslaughter for the jury's consideration, solely on the basis that if the jury rejected self-defence and were satisfied that the appellant caused the death but were not satisfied that he intended to kill or do grievous bodily harm to the deceased, they would convict the appellant of manslaughter only.

The court concluded that there was evidence capable of raising the issue of provocation and that the evidence raised the possibility that the appellant may have lost self-control when he killed the deceased. The court found that the trial judge erred in not directing the jury on the issue of provocation, which deprived the appellant of the opportunity of an acquittal of murder. Consequently, the appeal was allowed, the conviction for murder was quashed, and the case was remitted to the Court of Criminal Appeal to consider whether a verdict of manslaughter should be substituted for the conviction of murder.

Orders

Orders of the court

The appeal against the conviction for entering

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - appellant convicted after trial of both entering premises with intent to commit an indictable offence whilst armed and murder - at close of prosecution case defence counsel submitted provocation was raised on prosecution case - after appellant gave evidence defence counsel indicated he did not think he would be pursuing provocation as an issue - defence counsel did not request provocation be left for the jury's consideration or address or seek redirections on the issue of provocation - trial judge summed up defence case on basis of self-defence only - alternative verdict of manslaughter left for the jury's consideration solely on the basis that if the jury rejected self-defence and were satisfied that the appellant caused the death but were not satisfied that he intended to kill or do grievous bodily harm to the deceased they would convict the appellant of manslaughter only - whether there was evidence capable of raising the issue of provocation - whether the evidence raised the possibility that the appellant may have lost self-control, whether through fear, anger, panic or a combination of all these factors when he killed the deceased - whether trial judge erred in not directing the jury on the issue of provocation - whether appellant deprived of the opportunity of an acquittal of murder
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION - POWER TO ORDER NEW TRIAL OR QUASH CONVICTION AND DIRECT ENTRY OF JUDGMENT OF ACQUITTAL - where appellant convicted after trial of murder - whether trial judge erred in not directing the jury on the issue of provocation - whether Court of Appeal can record a conviction for manslaughter and order a retrial only on the offence of murder - whether Court of Appeal limited to either ordering a new trial on murder under s 669 Criminal Code 1899 (Qld) or substituting a verdict of guilty for manslaughter under s 668F(2) Criminal Code 1899 (Qld)
Criminal Code 1899 (Qld), s 304, s 668E, s 668F, s 669
Hughes v The King (1951) 84 CLR 170