R v Cuskelly - [2009] QCA 375

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cuskelly [2009] QCA 375

PARTIES:

R
v
CUSKELLY, Michael John
(appellant)

FILE NO/S:

CA No 39 of 2009
SC No 936 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

8 December 2009

DELIVERED AT:

Brisbane

HEARING DATE:

30 November 2009

JUDGES:

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

ORDERS:

1.   Appeal allowed

2.   Conviction set aside

3.   New trial of the charge of murder

CATCHWORDS:

CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – DEFENCE OF PERSONS OR PROPERTY – DEFENCE OF PROPERTY – where the appellant was convicted by jury of one count of murder – where the appellant stabbed the deceased in the chest and penetrated his heart – where the appellant and the deceased engaged in altercation at the appellant's residence – where appellant claimed that he feared that the deceased would attack himself and his wife – where the learned trial judge did not direct the jury in relation to s 267 of the Criminal Code 1899 (Qld) ("the Code") – where learned trial judge did not direct the jury in relation to s 23(1)(a) of the Code – whether miscarriage of justice occurred by virtue of the learned trial judge's failure to so direct the jury

Criminal Code 1899 (Qld), s 23, s 267, s 271, s 272, s 668E

MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited
R v Hussey (1924) 18 Cr App Rep 160, cited
Stevens v The Queen (2005) 227 CLR 319; [2005] HCA 65, cited
The Queen v Soma (2003) 212 CLR 299; [2003] HCA 13, cited
Van Den Hoek v The Queen (1986) 161 CLR 158; [1986] HCA 76, cited

COUNSEL:

P J Callaghan SC, with E Gass, for the appellant
M J Copley SC for the respondent

SOLICITORS:

Walker Pender for the appellant
Director of Public Prosecutions (Queensland) for the respondent

KEANE JA:
The appellant was convicted upon the verdict of a jury of one count of murder. Mr Carr ("the deceased") died of a stab wound to the chest on

17 September 2007. The stab wound was inflicted by the appellant. The appellant and the deceased were engaged in an altercation when a knife held by the appellant entered the chest of the deceased and penetrated his heart.

The appellant seeks orders that the conviction of murder be set aside and a new trial ordered on a charge of manslaughter only.

The grounds of appeal on which the appellant relies assert error of law on the part of the learned trial judge in his directions to the jury. The appellant also asserts that there was not a sufficient basis in the evidence for the jury to be satisfied beyond reasonable doubt that the appellant intended to…

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 Cuskelly

Details

AGLC: R v Cuskelly [2009] QCA 375
Case: [2009] QCA 375
Decision Date: 8 December 2009

CaseChat Overview and Summary

In the matter of R v Cuskelly, the appellant was convicted by a jury of one count of murder. The deceased had been stabbed in the chest, the blade penetrating his heart. The incident occurred during an altercation at the appellant's residence, where the appellant claimed he feared the deceased would attack himself and his wife. The appellant appealed his conviction, contending that the trial judge had erred in not directing the jury on the provisions of s 267 and s 23(1)(a) of the Criminal Code 1899 (Qld). These sections relate to the defence of property and the use of force in self-defence, respectively.

The legal issues before the court centred on whether the trial judge's failure to direct the jury on the relevant statutory provisions constituted a miscarriage of justice. Specifically, the court had to consider whether the trial judge's omission to direct the jury on s 267 and s 23(1)(a) of the Code meant that the jury had not been properly informed of the applicable legal standards when assessing the appellant's defence. The court's task was to determine if this omission was significant enough to warrant a new trial.

The court found that the trial judge's failure to direct the jury on s 267 and s 23(1)(a) of the Code was indeed a significant error. The court held that the jury should have been instructed on these provisions to enable them to properly assess the appellant's defence. The omission was deemed to be a material error that affected the fairness of the trial process. Consequently, the court concluded that a miscarriage of justice had occurred, warranting the setting aside of the conviction and the ordering of a new trial.

The court allowed the appeal, set aside the conviction, and ordered a new trial on the charge of murder. This decision underscores the importance of ensuring that juries are properly informed of all relevant legal standards when assessing a defendant's defence, particularly in cases involving claims of self-defence and the defence of property.

Orders

Orders of the court

1. Appeal allowed

2. Conviction set aside

3. New trial of the charge of murder

Background

Background to the litigation

Full text does not contain this section.

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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CITATION:	R v Cuskelly [2009] QCA 375
PARTIES:	R v CUSKELLY, Michael John (appellant)
FILE NO/S:	CA No 39 of 2009 SC No 936 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	8 December 2009
DELIVERED AT:	Brisbane
HEARING DATE:	30 November 2009
JUDGES:	Keane and Muir JJA and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal allowed 2. Conviction set aside 3. New trial of the charge of murder
CATCHWORDS:	CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – DEFENCE OF PERSONS OR PROPERTY – DEFENCE OF PROPERTY – where the appellant was convicted by jury of one count of murder – where the appellant stabbed the deceased in the chest and penetrated his heart – where the appellant and the deceased engaged in altercation at the appellant's residence – where appellant claimed that he feared that the deceased would attack himself and his wife – where the learned trial judge did not direct the jury in relation to s 267 of the Criminal Code 1899 (Qld) ("the Code") – where learned trial judge did not direct the jury in relation to s 23(1)(a) of the Code – whether miscarriage of justice occurred by virtue of the learned trial judge's failure to so direct the jury Criminal Code 1899 (Qld), s 23, s 267, s 271, s 272, s 668E MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited R v Hussey (1924) 18 Cr App Rep 160, cited Stevens v The Queen (2005) 227 CLR 319; [2005] HCA 65, cited The Queen v Soma (2003) 212 CLR 299; [2003] HCA 13, cited Van Den Hoek v The Queen (1986) 161 CLR 158; [1986] HCA 76, cited
COUNSEL:	P J Callaghan SC, with E Gass, for the appellant M J Copley SC for the respondent
SOLICITORS:	Walker Pender for the appellant Director of Public Prosecutions (Queensland) for the respondent