R v Elkerton-Sandy - [2023] QSC 32

SUPREME COURT OF QUEENSLAND

CITATION:

R v Elkerton-Sandy [2023] QSC 32

PARTIES:

R
v

ELKERTON-SANDY, Joshua Lindsay

FILE NO:

Indictment No 687 of 2022

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

28 February 2023

DELIVERED AT:

Brisbane

HEARING DATE:

21 February 2023; 22 February 2023; 23 February 2023; 24 February 2023; 27 February 2023

JUDGE:

Cooper J

RULING:

Joshua Lindsay Elkerton-Sandy has a case to answer on the indictment.

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – MATTERS RELATING TO PROOF – PRIMA FACIE CASE OR CASE TO ANSWER – GENERALLY – where the deceased died as a result of a stab wound inflicted by the accused after the deceased and others entered the hotel room where the accused was staying for the purpose of assaulting the accused – where the accused is charged on indictment with one count of manslaughter under s 303(1) of the Criminal Code Act 1899 (Qld) – where the accused pleaded not guilty – where the evidence raises self-defence under s 271 of the Criminal Code Act 1899 (Qld) – where the evidence raises defence of dwelling under s 267 of the Criminal Code Act 1899 (Qld) – where at the close of the Crown case a no case submission was made on behalf of the accused – whether on the evidence as it stands the accused could lawfully be convicted of manslaughter

Criminal Code Act 1899 (Qld), s 267, s 271, s 272, s 293, s 303(1)

Case Stated by DPP (No 2 of 1993) (1993) 61 SASR 1, cited
Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51, cited
May v O’Sullivan (1955) 92 CLR 654, cited
R v Cuskelly [2009] QCA 375, cited
R v Galbraith [1981] 1 WLR 1039, cited
R v Goldsworthy, Goldsworthy & Hill [2016] QSC 220, considered
R v Hill [1988] 1 Qd R 654, cited
R v Stewart; ex parte Attorney-General [1989] 1 Qd R 590, cited
R v Summers [1990] 1 Qd R 92, cited
Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27, cited

COUNSEL:

D Nardone for the Crown

S Kissick for the defendant

SOLICITORS:

Office of the Director of Public Prosecutions (Qld) for the Crown

Wallace O’Hagan for the defendant

On 26 January 2020, at about 9.25 pm, Kane Alexanderson and six other young men entered apartment 1705 (Apartment) in the iStay River City apartment building (iStay) located on Albert Street in Brisbane City. Joshua Lindsay Elkerton-Sandy and a number of other people had gathered in the Apartment on Australia Day.
On the Crown’s case, members of the group which entered the Apartment – including Mr Alexanderson – assaulted Mr Elkerton-Sandy after they entered.
In the altercation which followed Mr Alexanderson received two stab wounds. One of those wounds was to his chest. He died on 1 February 2020. The cause of Mr Alexanderson’s death was the subject of an admission 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.

Continue reading R v Elkerton-Sandy

Details

AGLC: R v Elkerton-Sandy [2023] QSC 32
Case: [2023] QSC 32
Decision Date: 28 February 2023

CaseChat Overview and Summary

In the case of R v Elkerton-Sandy, the defendant was charged with manslaughter under the Criminal Code Act 1899 (Qld). The case involved a confrontation between the accused, Mr Elkerton-Sandy, and Mr Alexanderson and his group, which culminated in Mr Alexanderson's death from a stab wound inflicted by Mr Elkerton-Sandy. Mr Elkerton-Sandy pleaded not guilty and raised the defences of self-defence under s 271(2) and defence of a dwelling under s 267 of the Code. The court had to determine whether, on the evidence presented by the Crown, Mr Elkerton-Sandy could be lawfully convicted of manslaughter.

The primary legal issues were whether the evidence presented was sufficient to establish a prima facie case for manslaughter, and whether the defences of self-defence and defence of a dwelling negated the offence. The court examined the evidence led by the Crown, including CCTV footage and witness testimonies, to determine if it was open to the jury to find that Mr Elkerton-Sandy's actions were not justified under the defences. The court also considered the elements of self-defence and defence of a dwelling, specifically whether Mr Elkerton-Sandy reasonably apprehended death or grievous bodily harm from Mr Alexanderson's group and whether he believed it was necessary to use force to repel them from his dwelling.

The court concluded that the evidence could support a finding of self-defence or defence of a dwelling, depending on the jury's assessment of Mr Elkerton-Sandy's state of mind at the time of the incident. The court found that the evidence of Mr Elkerton-Sandy's words and actions before the physical altercation commenced could be taken into account by the jury. If accepted, this evidence might support a finding that Mr Elkerton-Sandy's state of mind was one of willingness to engage in a fight, rather than fear of death or grievous bodily harm. The court held that it was open to the jury to find that Mr Elkerton-Sandy did not hold the belief required by s 271(2) at the commencement of the altercation, and that the defences of self-defence and defence of a dwelling did not negate the offence of manslaughter.

The court dismissed the no case submission, allowing the case to proceed to the jury for determination of guilt or innocence. The jury was tasked with deciding whether Mr Elkerton-Sandy's actions were justified under the defences of self-defence or defence of a dwelling, and whether they could be satisfied beyond reasonable doubt that he was not acting in self-defence or in defence of his dwelling.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The arguments on the no case submission focussed on the defences of self-defence to an unprovoked assault under s 271(2) of the Code and defence of a dwelling under s 267 of the Code. Before turning to the elements of those defences, I will set out in broad terms the evidence led on the Crown case.The evidence There was CCTV footage in evidence from:(a)various cameras in the iStay;(b)a camera outside the Capri apartment building located opposite the street from the iStay; and(c)cameras in the Oaks Festival Towers suites where Mr Alexanderson and others in his group gathered before the incident. Ultimately, what can be discerned from the footage will be for the jury to decide. However, it can be said in general terms that the footage depicts the comings and goings of Mr Elkerton-Sandy and other members of his group from the iStay, as well as the movements of Mr Alexanderson and his group in the period shortly before the incident. Evidence was given by a number of the group who were with Mr Elkerton-Sandy at the Apartment, as well as a number of the group who travelled to the Apartment with Mr Alexanderson. It appears not to be controversial that it would be open to the jury to find on the evidence, and that the jury would find, the following matters proved:(a)Mr Elkerton-Sandy arrived at the Apartment with two others in his party, Tasha Ashwin and Lavinia Pennefather, shortly after 6.00 pm on 26 January 2020;(b)at different times over the period until about 7.48 pm the following further people joined the group with Mr Elkerton-Sandy in the Apartment: Corey Jailett, Eddie Adler, Mia Sims, Sommer Coote, Montana Coggan and Scarlet Ahern-Elliott;(c)at about 9.05 pm, Ms Ashwin and Ms Ahern-Elliott left the Apartment and exited the foyer of the iStay to buy smokes;(d)shortly before 9.15 pm, the group which Mr Alexanderson was part of left the apartment in Oaks Festival Towers Suites and walked the short distance to the iStay;(e)at about 9.15 pm, Mr Elkerton-Sandy and Mr Jailett left the Apartment and went to the secure doors at the entry to the foyer of the iStay. There they had a short discussion with Reneo Manyak, a member of the group with Mr Alexanderson. At that time the remainder of the group with Mr Alexanderson were outside the Capri apartment building on the opposite side of Albert Street from the iStay. At the conclusion of the short discussion with Mr Manyak, Mr Elkerton-Sandy returned inside the iStay and to the Apartment. Mr Jailett stayed outside the front of the iStay foyer;(f)at about 9.23 pm, Ms Pennefather exited the foyer of the iStay. At that time she was in possession of a key for the Apartment;(g)at about 9.24 pm, Mr Alexanderson and eight other members of his group entered the foyer of the iStay and made their way to the lift which they took to the 17th floor where the Apartment was located. At that time, they were in possession of a key for the Apartment. Billy Siemon, a member of the group with Mr Alexanderson gave evidence that the group was going to the Apartment to fight Mr Elkerton-Sandy. Maleek Sandow, another member of the group with Mr Alexanderson, gave evidence that at the time of the events in question there was “beef” between Mr Alexanderson and Mr Elkerton-Sandy. He accepted under cross-examination that the group’s purpose in going to the Apartment was to assault Mr Elkerton-Sandy. Tremayne Sandow, Maleek Sandow’s brother and another member of the group with Mr Alexanderson, also accepted under cross-examination that the reason he left the Oaks Festival Tower suites was that the group was going to give Mr Elkerton-Sandy a “hiding”.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

As to defence of a dwelling, Mr Elkerton-Sandy relied particularly on the decision of the Queensland Court of Appeal in R v Cuskelly.[23]In that case Keane JA (with whom Muir JA and Daubney J agreed) rejected the submission that where a defence of self-defence is raised, s 271 and 272 of the Code operate to the exclusion of s 267. His Honour concluded that s 267 affords a separate, and more extensive, ground of defence to an accused. The ground of defence is more extensive because of the different language used in s 267. In circumstances where lethal force is used s 267 does not require that the accused reasonably apprehend death or grievous bodily harm from deceased’s assault. The question which arises under s 267 is whether Mr Elkerton-Sandy believed on reasonable grounds that it was necessary to use the force he did use to “prevent or repel” Mr Alexanderson and the other members of the group from remaining in the Apartment with the intent to assault him. As Keane JA noted, an accused person who is defending his or her home need not retreat from a threat even if retreat is a reasonably available way to make effectual defence against a threatened assault.[23][2009] QCA 375.Consideration On the question of self-defence, I accept the Crown’s submission that the evidence of Mr Siemon that Mr Elkerton-Sandy said words to the effect of “one on one, one on one” before the physical altercation commenced and the evidence of Tremayne Sandow that he saw Mr Elkerton-Sandy holding the knife down by his side when members of the group who entered the Apartment were moving towards him is evidence which can be taken into account by the jury in its deliberations and which, if accepted by the jury, together with the evidence of Mr Elkerton-Sandy’s response in his police interview when asked what was going through his head at the moment that Mr Alexanderson’s group came into the Apartment, is capable of supporting a finding that Mr Elkerton-Sandy’s state of mind at that early stage of the confrontation was not one of fear of death or grievous bodily harm, but one of a willingness to engage in a fight. I do not accept that this evidence, if accepted by the jury, is incapable of excluding, beyond a reasonable doubt, all reasonable hypotheses that are consistent with innocence, and particularly the competing inference that Mr Elkerton-Sandy believed he could not otherwise save himself from death or grievous bodily harm than by using the force which he used. It will be a matter for the jury to decide whether they accept the evidence and, if they do, whether they are satisfied that there is no reasonable possibility that Mr Elkerton-Sandy held the belief required by s 271(2) at the commencement of the altercation. The submission for Mr Elkerton-Sandy that a person who acts in self-defence must necessarily fight his attacker does not engage with the issue of Mr Elkerton-Sandy’s state of mind at the relevant time. While it is true that every person who acts in self-defence must fight in one form or another, I do not accept that any person who fights an attacker using lethal force, even in the circumstances in which Mr Elkerton-Sandy found himself when Mr Alexanderson and six other members of his group entered the Apartment, must necessarily believe at the time that force is used that he could not otherwise save himself from death or grievous bodily harm. For the reasons I have just explained, I do not accept that the jury, if it accepted the evidence identified by the Crown, could not be satisfied beyond reasonable doubt that Mr Elkerton-Sandy did not hold the required belief.

CITATION:	R v Elkerton-Sandy [2023] QSC 32
PARTIES:	R v ELKERTON-SANDY, Joshua Lindsay
FILE NO:	Indictment No 687 of 2022
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	28 February 2023
DELIVERED AT:	Brisbane
HEARING DATE:	21 February 2023; 22 February 2023; 23 February 2023; 24 February 2023; 27 February 2023
JUDGE:	Cooper J
RULING:	Joshua Lindsay Elkerton-Sandy has a case to answer on the indictment.
CATCHWORDS:	CRIMINAL LAW – EVIDENCE – MATTERS RELATING TO PROOF – PRIMA FACIE CASE OR CASE TO ANSWER – GENERALLY – where the deceased died as a result of a stab wound inflicted by the accused after the deceased and others entered the hotel room where the accused was staying for the purpose of assaulting the accused – where the accused is charged on indictment with one count of manslaughter under s 303(1) of the Criminal Code Act 1899 (Qld) – where the accused pleaded not guilty – where the evidence raises self-defence under s 271 of the Criminal Code Act 1899 (Qld) – where the evidence raises defence of dwelling under s 267 of the Criminal Code Act 1899 (Qld) – where at the close of the Crown case a no case submission was made on behalf of the accused – whether on the evidence as it stands the accused could lawfully be convicted of manslaughter Criminal Code Act 1899 (Qld), s 267, s 271, s 272, s 293, s 303(1) Case Stated by DPP (No 2 of 1993) (1993) 61 SASR 1, cited Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51, cited May v O’Sullivan (1955) 92 CLR 654, cited R v Cuskelly [2009] QCA 375, cited R v Galbraith [1981] 1 WLR 1039, cited R v Goldsworthy, Goldsworthy & Hill [2016] QSC 220, considered R v Hill [1988] 1 Qd R 654, cited R v Stewart; ex parte Attorney-General [1989] 1 Qd R 590, cited R v Summers [1990] 1 Qd R 92, cited Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27, cited
COUNSEL:	D Nardone for the Crown S Kissick for the defendant
SOLICITORS:	Office of the Director of Public Prosecutions (Qld) for the Crown Wallace O’Hagan for the defendant