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 dissentingORDER:
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
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- AGLC
- R v Cowan [2005] QCA 424
- Case
- [2005] QCA 424
- Decision Date
CaseChat Overview and Summary
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
1.
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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