R v Ellem (No 2) - [1994] QCA 549

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 346 of 1994

Brisbane

[R. v. Ellem]

T H E Q U E E N

WARREN RONALD ELLEM

(Appellant)
Fitzgerald P.
McPherson J.A.
Davies J.A.

Judgment delivered 16/12/94
Separate concurring reasons of each member of the Court.

APPEAL AGAINST CONVICTION ALLOWED. THE CONVICTION AND VERDICT ARE SET ASIDE. A NEW TRIAL ORDERED OF THE CHARGE IN THE INDICTMENT.

Solicitors:

Lang Hemming & Hall for the appellant
Director of Prosecutions for the Crown

Hearing Date: 24 November 1994
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 346 of 1994

Brisbane

Before

Fitzgerald P.
McPherson J.A.
Davies J.A.

[R. v. Ellem]

T H E Q U E E N

WARREN RONALD ELLEM

(Appellant)

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the 16th day of December 1994

We have already allowed this appeal by Warren Ellem
against his conviction for manslaughter arising out of the
death of Gregory Michael Turner on 19 June 1992. The appellant

and Turner were among a group of people who had spent the evening of 7 June 1992 drinking at a football club at Broadbeach on the Gold Coast. At about 10.30 p.m. four of them hired a taxi, driven by a Mr Raymond Jago, to travel to their

homes. The appellant was the first to reach his destination.

He was sitting in the middle of the back seat with passengers on either side of him. One of them was Turner, who got out of the vehicle to let the appellant out. When they were both out of the taxi an altercation took place after Turner demanded that the appellant pay his share of the taxi fare, and a struggle ensued.

After being struck several blows by the appellant, Turner collapsed. He was taken to hospital and treated, but he died on 19 June 1992, when his life support system was withdrawn. By that time there was an area of necrosis in the brain tissue, and medical opinion was that he had no chance of survival. Ground 1(b) in the notice of appeal appears to call in question the propriety of the decision to withdraw the support system and the appellant's responsibility for the death that followed; but the evidence showed quite clearly that Turner's death was

caused by the effects of the initial trauma resulting from the blows inflicted by the appellant, and the matter is covered by

the decision in R. v. Kinash [1982] Qd.R. 648, from which there

is no reason here to depart.

Ground 2 is another ground which, like ground 1(b), was
dealt with in the appellant's written outlines but not in the

oral submissions on appeal. Turner had been convicted of the offence of manslaughter committed in the company of another man Clarke in Victoria in 1975, for which Turner was sentenced to imprisonment for 12 months with a recommendation for parole

after four months. After a careful review of the authorities, Australian, English and…

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 Ellem (No 2)

Details

AGLC: R v Ellem (No 2) [1994] QCA 549
Case: [1994] QCA 549
Decision Date: 16/12/1994

CaseChat Overview and Summary

The Court of Appeal of the Supreme Court of Queensland heard an appeal against conviction by Warren Ronald Ellem, who was convicted of manslaughter following the death of Gregory Michael Turner. The appellant and Turner were among a group of people who had been drinking together at a football club on the Gold Coast. The two men had hired a taxi to travel to their homes, with the appellant sitting in the middle of the back seat with Turner on his right and another passenger on his left. After the taxi stopped, Turner demanded that the appellant pay his share of the taxi fare, leading to an altercation and physical assault by the appellant on Turner. Turner died twelve days later from injuries sustained during the altercation.

The appeal against conviction raised several grounds for review, including the admissibility of Turner's prior conviction for manslaughter, the sufficiency of the evidence to exclude self-defence under s.271 of the Criminal Code, and the adequacy of the trial judge's directions to the jury on the concept of an "unlikely consequence" under s.23 of the Criminal Code. The Court found that Turner's prior conviction was too remote in time to be relevant, and that the evidence did not support the appellant's claim of self-defence. The Court also found that the trial judge's directions to the jury on the "unlikely consequence" test were confusing and contained errors, warranting a retrial of the appellant.

The Court of Appeal allowed the appeal against conviction, set aside the conviction and verdict, and ordered a new trial of the charge against the appellant. The Court emphasised the importance of simplifying the issues for the jury and ensuring that the directions given are comprehensible and free from error. The Court also held that a prosecutor's remark about the appellant's credibility being affected by his interest in the outcome of the proceedings did not, in the absence of any support from the trial judge, amount to a mistrial.

Orders