R v Dean; R v Selmes; R v Phillips - [2018] QCA 124

SUPREME COURT OF QUEENSLAND

CITATION:

R v Dean; R v Selmes; R v Phillips [2018] QCA 124

PARTIES:

In CA No 259 of 2016:
R
v
DEAN, Dallas Glenn Kincaid
(applicant)

In CA No 271 of 2016:
R
v
SELMES, Michael Robert
(applicant)

In CA No 287 of 2016:
R
v
PHILLIPS, Douglas Allan
(appellant/applicant)

FILE NO/S:

CA No 259 of 2016
CA No 271 of 2016
CA No 287 of 2016
SC No 235 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Applications
Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Convictions: 4 May 2016; Dates of Sentences: 12, 14 and 16 September 2016

DELIVERED ON:

15 June 2018

DELIVERED AT:

Brisbane

HEARING DATE:

27 March 2018

JUDGES:

Sofronoff P and Flanagan and Brown JJ

ORDERS:

In CA No 259 of 2016:

1.   Dallas Glenn Kincaid Dean’s application for leave to appeal against sentence is refused.

In CA No 271 of 2016:

1.   Michael Robert Selmes’ application for leave to appeal against sentence is granted.

2.   The appeal is dismissed.

In CA No 287 of 2016:

1.   Douglas Allan Phillips’ appeal against conviction is dismissed.

2.    Douglas Allan Phillips’ application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where the applicants, following a joint trial, were each found not guilty of the offence of murder but guilty of the alternative offence of manslaughter – where it was uncontroversial at trial that the applicants had participated in a “vicious” assault upon the deceased – where the appellant, Phillips, submits that the Crown failed at trial to prove beyond reasonable doubt that he foresaw the deceased’s death as a possible or probable consequence of the assault, or that an ordinary person would reasonably have foreseen the deceased’s death as a possible consequence of the assault, pursuant to sections 7 and 8 of the Criminal Code (Qld) – whether it was reasonably open to the jury, upon the whole of the evidence, to be satisfied beyond reasonable doubt that the appellant was guilty of manslaughter

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE – GENERAL PRINCIPLES – where the trial judge distributed diagrammatic question trails or flow charts to the jury, setting out factual issues relevant to sections 7 and 8 of the Criminal Code – where the appellant submits that the trial judge did not adequately explain the subjective nature of “common intention” for the purposes of section 8 – whether the trial judge misdirected the jury on section 8, occasioning a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the sentencing judge erroneously described the applicant Phillips as having previously been convicted of the offence of rape – where the applicant had in…

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.

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Details

Case: [2018] QCA 124
Decision Date: 15 June 2018

CaseChat Overview and Summary

In the case of R v Dean; R v Selmes; R v Phillips, the applicants were convicted in a joint trial of manslaughter, but acquitted of murder. Each of the applicants sought leave to appeal against their respective convictions and sentences. The applicants raised various grounds of appeal, including the contention that the Crown failed to prove the requisite mens rea for manslaughter, that the trial judge misdirected the jury on the law, and that the sentences imposed were manifestly excessive or inadequate.

The central legal issues revolved around the sufficiency of the evidence to establish the mens rea required for manslaughter under sections 7 and 8 of the Criminal Code, the adequacy of the trial judge's directions to the jury, and the appropriateness of the sentences imposed. The applicants argued that the Crown had not proven beyond reasonable doubt that the applicants foresaw the deceased's death as a possible or probable consequence of their actions, or that an ordinary person would have foreseen such a consequence. They also contended that the trial judge did not adequately explain the subjective nature of "common intention" for the purposes of section 8, and that this misdirection may have occasioned a miscarriage of justice. Additionally, they argued that the sentences imposed were manifestly excessive due to errors in the sentencing judge's characterisation of their criminal histories and inadequate consideration of pre-trial offers to plead to manslaughter.

The court found that the jury was reasonably open to find the applicants guilty of manslaughter based on the whole of the evidence. The court held that the trial judge's directions to the jury were adequate, and there was no misdirection that occasioned a miscarriage of justice. Regarding the sentences, the court found that the sentencing judge did not hold an inflated view of the applicants' criminal histories, and that there was no error in not considering the pre-trial offers to plead to manslaughter. In respect of the appeals against sentence, the court found that the sentences were not manifestly excessive or inadequate, and accordingly, the appeals against sentence were dismissed, save for Selmes, whose appeal against sentence was allowed but the appeal itself was dismissed.

The court's final orders were that Dallas Glenn Kincaid Dean's application for leave to appeal against sentence was refused, Michael Robert Selmes' application for leave to appeal against sentence was granted but the appeal was dismissed, and Douglas Allan Phillips' appeal against conviction was dismissed along with his application for leave to appeal against sentence.

Orders

Orders of the court

In CA No 259 of 2016:

1. Dallas Glenn Kincaid Dean’s application for leave to appeal against sentence is refused.

In CA No 271 of 2016:

1. Michael Robert Selmes’ application for leave to appeal against sentence is granted.

2. The appeal is dismissed.

In CA No 287 of 2016:

1. Douglas Allan Phillips’ appeal against conviction is dismissed.

2. Douglas Allan Phillips’ application for leave to appeal against sentence is refused.

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 Dean; R v Selmes; R v Phillips [2018] QCA 124
PARTIES:	In CA No 259 of 2016: R v DEAN, Dallas Glenn Kincaid (applicant) In CA No 271 of 2016: R v SELMES, Michael Robert (applicant) In CA No 287 of 2016: R v PHILLIPS, Douglas Allan (appellant/applicant)
FILE NO/S:	CA No 259 of 2016 CA No 271 of 2016 CA No 287 of 2016 SC No 235 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Applications Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Convictions: 4 May 2016; Dates of Sentences: 12, 14 and 16 September 2016
DELIVERED ON:	15 June 2018
DELIVERED AT:	Brisbane
HEARING DATE:	27 March 2018
JUDGES:	Sofronoff P and Flanagan and Brown JJ
ORDERS:	In CA No 259 of 2016: 1. Dallas Glenn Kincaid Dean’s application for leave to appeal against sentence is refused. In CA No 271 of 2016: 1. Michael Robert Selmes’ application for leave to appeal against sentence is granted. 2. The appeal is dismissed. In CA No 287 of 2016: 1. Douglas Allan Phillips’ appeal against conviction is dismissed. 2. Douglas Allan Phillips’ application for leave to appeal against sentence is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where the applicants, following a joint trial, were each found not guilty of the offence of murder but guilty of the alternative offence of manslaughter – where it was uncontroversial at trial that the applicants had participated in a “vicious” assault upon the deceased – where the appellant, Phillips, submits that the Crown failed at trial to prove beyond reasonable doubt that he foresaw the deceased’s death as a possible or probable consequence of the assault, or that an ordinary person would reasonably have foreseen the deceased’s death as a possible consequence of the assault, pursuant to sections 7 and 8 of the Criminal Code (Qld) – whether it was reasonably open to the jury, upon the whole of the evidence, to be satisfied beyond reasonable doubt that the appellant was guilty of manslaughter CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE – GENERAL PRINCIPLES – where the trial judge distributed diagrammatic question trails or flow charts to the jury, setting out factual issues relevant to sections 7 and 8 of the Criminal Code – where the appellant submits that the trial judge did not adequately explain the subjective nature of “common intention” for the purposes of section 8 – whether the trial judge misdirected the jury on section 8, occasioning a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the sentencing judge erroneously described the applicant Phillips as having previously been convicted of the offence of rape – where the applicant had in…