R v Ellem (No 2) - [1994] QCA 576

IN THE COURT OF APPEAL [1994] QCA 576

SUPREME COURT OF QUEENSLAND	C.A. No. 346 of 1994
Brisbane
BeforeFitzgerald P. McPherson J.A. Davies J.A.
[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.

CATCHWORDSCRIMINAL LAW - MANSLAUGHTER - Self-defence - s.271 Criminal Code - Death caused by series of punches to head - Appellant claimed he was struck first - Whether Crown required to identify fatal blow in series to exclude self- defence beyond reasonable doubt.

CRIMINAL LAW - DIRECTIONS TO JURY - Manslaughter - 2nd limb of s.23 Criminal Code - Nature of van den Bemd direction discussed - Use of word "possibility" discussed.

CRIMINAL LAW - PROSECUTOR'S CLOSING ADDRESS - Reference to accused's credibility being affected by interest in outcome - Whether sufficient to cause mistrial.

Counsel:R. Hanson Q.C., with him M. Burns for the appellant

R. Martin for the Crown

Solicitors:Lang Hemming & Hall for the appellant

Director of Prosecutions for the Crown

Hearing Date:24 November 1994

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 16/12/1994

The circumstances giving rise to this appeal are set out in the

reasons for judgment of McPherson J.A. As his Honour states, the Court allowed the appeal on the day it was heard and ordered

a new trial. McPherson J.A.'s discussion of the trial judge's summing-up in relation to s. 23 of the Criminal Code explains that course. However, it is also necessary to explain why any

grounds of appeal which might have entitled the appellant to a

verdict of acquittal were not upheld: Jones v. R. (1989) 166
C.L.R. 429.

There was no evidentiary basis for ground 1(b), which was not pressed in oral argument. Nor was ground 2, which in any event

could not entitle the appellant to a verdict of acquittal.
Grounds 1(a), 3 and 4, which relate to s. 271 of the Code, are
also dependent on the evidence, and in particular the accused's
own testimony, which the jury might have rejected. Nonetheless,

questions relating to the operation of s. 271 are likely to

arise at the appellant's retrial, and brief comment on its
material operation is desirable.

As McPherson J.A. states, the second limb of s. 271 has no

potential relevance in this matter; there was no basis for the

respondent to believe that force was needed to preserve himself from death or grievous bodily harm at the hands of the deceased.

However, by reason of the first limb of s. 271, it was necessary for the prosecution to prove beyond reasonable doubt that either:

(i)the appellant did not strike the deceased in defending
himself against an unprovoked assault; or

(ii)if he did, the force used by the appellant was

(a)more than "reasonably necessary"; or

(b)"intended ... to cause death…

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 576
Case: [1994] QCA 576
Decision Date: 24/11/1994

CaseChat Overview and Summary

The Court of Appeal of the Supreme Court of Queensland heard an appeal by Warren Ronald Ellem against his conviction for manslaughter. The deceased, Gregory Michael Turner, died as a result of injuries sustained during an altercation with Ellem. The Court allowed the appeal, set aside the conviction and verdict, and ordered a new trial. The appeal hinged on two primary issues. First, whether the prosecution had to identify the fatal blow to exclude self-defence under s.271 of the Criminal Code. Second, whether the trial judge's directions to the jury about the operation of the second limb of s.23 of the Code were confusing and, in some respects, erroneous. The Court held that the prosecution did not need to identify the fatal blow in a series of punches to exclude self-defence beyond reasonable doubt. Instead, it was the combination of blows that constituted the force used for the purpose of s.271 of the Code. The Court also found that the trial judge's directions to the jury were confusing and contained some errors. The Court emphasized the importance of simplifying the issues for the jury to ensure a comprehensible understanding of the facts and issues at the trial. The Court concluded that the appeal against conviction was allowed, and the conviction and verdict were set aside. A new trial has been ordered of the charge in the indictment against the appellant.

Orders