R v Elliott

Case [2023] QCA 138

SUPREME COURT OF QUEENSLAND

CITATION:

R v Elliott [2023] QCA 138

PARTIES:

R
v
ELLIOTT, Levi John-Stephen
(appellant)

FILE NO/S:

CA No 243 of 2021
SC No 205 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 13 September 2021 (Martin J)

DELIVERED ON:

14 July 2023

DELIVERED AT:

Brisbane

HEARING DATE:

21 February 2023

JUDGES:

Morrison and McMurdo JJA and Gotterson AJA

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant and the deceased were involved in a fight outside of a football club – where, during the course of that fight, the appellant stabbed the deceased, and the deceased died as a result of that stabbing – where there was a history of animosity between the appellant and the deceased – where the appellant carried a butterfly knife with him to the venue on the night of the fight – where the evidence showed heated interactions between the appellant and the deceased prior to the fight – where, in the course of the fight, the deceased was straddling the appellant and punching the appellant in the head – where the appellant removed the butterfly knife and used it to stab the deceased – whether it was open to the jury to be satisfied beyond reasonable doubt that the appellant had formed any intent other than to save himself from serious injury or death – whether it was open to the jury to be satisfied beyond reasonable doubt that a defence of self-defence was excluded – whether it was open to the jury to find that the appellant had not proved provocation on the balance of probabilities – whether the verdict was unreasonable or insupportable having regard to the evidence

CRIMINAL LAW – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF PROSECUTOR OR PROSECUTION – where, on address, the prosecutor intimated to the jury that a piece of CCTV footage tendered at trial showed the appellant holding the butterfly knife that was ultimately used to stab the deceased during a fight – where defence counsel contended that this could not be seen on the footage – where the issue should have been put directly to the defendant during his evidence, but was not – where defence counsel prepared a document which outlined its contentions that it was a mobile phone that could be seen on the CCTV footage – where the prosecution proposed to, and ultimately did, both tender the document prepared by defence counsel, and address the jury in terms that it was for the jury to make their own determination of what they could see in the CCTV footage – where defence counsel agreed to that proposed course, and made no application for a mistrial – whether the conduct of the prosecutor was prosecutorial misconduct – whether the course taken could overcome any unfairness against the appellant by reason…

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AGLC
R v Elliott [2023] QCA 138
Case
[2023] QCA 138
Decision Date

CaseChat Overview and Summary

In the matter of R v Elliott, the appellant contested the reasonableness of the jury's verdict and claimed prosecutorial misconduct and misdirection by the trial judge. The appellant and the deceased were involved in a fight outside a football club, during which the appellant stabbed the deceased, leading to the deceased's death. The appellant carried a butterfly knife to the venue, and there was a history of animosity between the parties. The appellant argued that the jury should have been satisfied beyond reasonable doubt that he intended to save himself from serious injury or death and that self-defence was not excluded. Additionally, the appellant argued that the prosecutor's conduct during the trial was prosecutorial misconduct and that the trial judge misdirected the jury on the issues of self-defence and provocation.

The court found that the jury's verdict was not unreasonable or insupportable considering the evidence. The court dismissed the appellant's claim of prosecutorial misconduct, as the prosecutor's conduct did not cause an unfair trial. The court also dismissed the claim of misdirection, as the trial judge covered all relevant activity from the beginning of the interactions between the appellant and the deceased until the fight ended.

The appeal was dismissed, and the court ordered that the appeal be dismissed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

The first category includes several prior incidents involving Woodward and the appellant at the football club. Mr Hamlyn-Harris urged that an understanding of those incidents, and the broader background of the relations between the appellant and Woodward, were critical to a proper examination of the evidence concerning the events of 24 August 2018 and, in particular, the issues on Ground 1 of the appeal.Background to the relations between the appellant and Woodward A number of witnesses gave evidence about their observations and beliefs as to the nature of the relationship between the appellant and Woodward.Nicholas Owen[8][8]AB 173–AB 175. Owen was employed as a bartender at the football club. He was first employed in October 2017 by the appellant. He had a good relationship with the appellant and the appellant was a good boss. Prior to 24 August 2018, he witnessed verbal arguments between the appellant and Woodward. He never saw Woodward start an argument; it was “[o]ften – always – always [the appellant]”.Sydney Liu Liu[9][9]AB 220–AB 242. Liu knew Woodward through playing football at the club. Liu also had a familial connection with Woodward, as Liu’s mother’s side was related to Woodward’s father’s side. Liu knew the appellant as Liu used to manage the bar at the club, and the appellant worked at the bar. Prior to 24 August 2018, Liu had not witnessed any other disagreements between Woodward and the appellant. He did not recall being involved in a disagreement between Woodward, the appellant, and David Morrison on 6 July 2018.[10]Adam Blake[11][10]AB 242 lines 7–9.[11]AB 325–326. Blake remembered the appellant receiving a phone call prior to the night of the offence from Woodward while he and the appellant were at the Acacia Ridge McDonalds. During that phone call, Woodward said, “[y]ou know where I live”.[12]Amanda Stollznow[13][12]AB 325 line 28 to AB 326 line 6.[13]AB 432–AB 454. In August 2018, Stollznow worked as a volunteer at the football club as the club secretary. She had known Woodward for a couple of years, and the appellant since he started working at the club in May 2017. Stollznow knew that there was a feud going on between Woodward and the appellant. She recalled a particular incident in the beer garden in June/July 2018, where the appellant’s mother (Joanne Siglin) was selling raffle tickets. Joanne sat down with Stollznow, who was sitting with Woodward. The appellant said to Joanne, “[w]hat are you sitting there with that fucking dog for?”.[14] Joanne got up and went upstairs, and some words were exchanged between Woodward and the appellant before Woodward left.[15][14]AB 433 lines 44–45.[15]AB 434 lines 1–3. Approximately two weeks prior to 24 August 2018, Stollznow had a conversation with Woodward in the beer garden. Woodward told Stollznow that the appellant had said to him, “next time I see you, you’ll have a knife in your throat”, and Woodward was chuckling.[16][16]AB 434 lines 43–44.

Evidence

Evidence Before The Court

The appellant challenges the conviction on three grounds of appeal:(a)Ground 1 – the verdict of the jury was unreasonable and cannot be supported having regard to the evidence;(b)Ground 2 – the conduct of the prosecution resulted in a miscarriage of justice; and(c)Ground 3 – the directions to the jury on self-defence and provocation did not adequately explain to the jury the need to relate their consideration of those defences specifically to Woodward’s assault on the appellant by straddling him and punching him in the head from a superior position while the appellant was on his back on the ground.Overview of the evidence Mr Hamlyn-Harris, who appeared with Ms Cousen of Counsel for the appellant, accepted the learned trial judge’s summary of the eyewitness accounts of what happened outside the club. That permits me to adapt that summary for present purposes. A full review of the evidence will appear later in these reasons, but this overview encapsulates the pertinent aspects of the evidence.[1][1]Throughout this judgment, except where necessary to distinguish between witnesses, I shall refer to them using surnames. To avoid confusion, I will refer to the appellant’s mother as ‘Joanne’, and the appellant’s half-sister as ‘Mackenzie’. The only witness who saw nearly all of the events of that night and, in particular, the events on the roadway outside the club, and who had not been drinking that night, was Mr Owen. Owen remembered going down to the footpath where he saw the appellant on the side of the road, opposite the clubhouse. Owen heard someone say to the appellant, “drop the bottle, drop the bottle.” Owen saw the appellant drop the bottle. Owen said to the appellant, “walk away, come with me. Just come inside.” He heard the appellant say towards Woodward, “I don’t want to punch on. I want to hurt you”, or words like, “[c]ome so I can hurt you,” or “[c]ome and let me hurt you”. Owen said to the appellant, “mate, just drop it. Go away and leave it”. The appellant replied, “if he had disrespected your mum and sister, wouldn’t you want to hurt him too?” Owen heard the appellant say to Woodward, “[c]ome on. Come on”. He then saw the appellant start walking towards Tramore Street, and Woodward started to follow him. Owen then became distracted by something that another patron, Mr Liu, was doing. Owen started to push Liu back towards the clubhouse and, in doing so, had his back facing Tramore Street; that is, facing away from the appellant and Woodward. When Owen finished doing that, he turned around and saw Woodward throw the appellant into the fence. Owen had seen each of them moving towards the fence. They had each other by the shirt at that point. They were moving the whole time. Owen thought he was then about three metres away from them. He described them as being in a standing up wrestle. As they moved towards the fence, he saw Woodward throw the appellant into the fence. After that, the appellant was on the ground and Woodward got on top of him.

Decision

Reasons for decision

This ground fails.Conclusion For the reasons expressed above the appeal should be dismissed. The order I propose is:Appeal dismissed. McMURDO JA: As the trial judge told the jury, the major issue in this case was that of self-defence. There was no issue that the appellant had killed Mr Woodward, by stabbing him as the two men fought. Nor was there any dispute that Mr Woodward had assaulted the appellant. On any realistic view of the evidence, the stabbing which caused Mr Woodward’s death was inflicted as Mr Woodward was on top of the appellant and punching him in the head. The evidence raised for the jury’s consideration the application of not only s 271(2) of the Criminal Code, but also, according to the prosecutor’s argument, s 272. The prosecution case was that any relevant assault by Mr Woodward was provoked by the appellant, or was preceded by an assault upon Mr Woodward. The prosecution argument was that the appellant went to the clubhouse on that evening with the intention of stabbing Mr Woodward, and to that end, the appellant sought to provoke Mr Woodward to fight him. The prosecutor argued this provocation occurred throughout the evening as well as when the appellant encouraged him to come down to the street to fight him. The evidence did not demonstrate that it was the appellant who threw the first punch. But the prosecutor argued that if it was Mr Woodward who did so, he was provoked, just as the appellant was intending. In R v Prow,[328] a majority of the Court held that the word “provoked” in s 271(1) derives its meaning from the definition of “provocation” in s 268. Accordingly, as this Court held in R v Dean,[329] juries should be instructed about the meaning of “provoked” with reference to that definition, and that self-defence under s 271 is not defeated merely by the circumstance that the victim’s assault upon the accused was “provoked” in some broader sense of the term than would constitute “provocation” as that term is defined in s 268.[330] Consequently, as the jury was instructed in this case, the word “provocation” means any wrongful act or insult, of such a nature as to be likely, when done to an ordinary person, to deprive him of the power of self-control, and to induce him to assault the person by whom the act or insult is done or offered. The question for the jury in this respect was not so much whether the appellant was trying to provoke Mr Woodward to fight him, but whether there was something done or said by the appellant which, when done to an ordinary person, would be likely to deprive him of the power of self-control.[328][1990] 1 Qd R 64.[329][2009] QCA 309.[330][2009] QCA 309 at [29] per Fraser JA, McMurdo P at [1] and Cullinane J at [50] agreeing. There was a body of evidence from several witnesses as to the history of animosity between these two men. However, the conduct upon which the prosecutor relied, in arguing that there was provocation by the appellant, was limited to what occurred at the clubhouse on that evening. There were interactions in the pool room between the two, in which the appellant was making sarcastic remarks about Mr Woodward’s playing on a nearby table. Subsequently, when the appellant was on the smoking area balcony with Mr Blake and Mr Hiku, Mr Woodward approached the appellant who told Mr Woodward that he wanted an apology for what had occurred between Mr Woodward and the appellant’s mother and sister. According to the witness Mr Hiku, the appellant then said to Mr Woodward “I’ll have a chat downstairs” and the appellant then left the smoking area followed by Mr Woodward. When downstairs and on the street, the two men argued before the physical fight commenced.

Ratio Decidendi

Legal Principle Established

On resumption, those words were read out, the document was tendered, and it became Exhibit 38.Consideration In my view, for the following reasons this ground should be rejected. First, the unfairness said to follow from the statement (set out in paragraph [282] above) being made was because it had not been put to the appellant so that he could comment upon it, and that meant also that defence Counsel was denied the chance to address upon it. True it is, that the prosecutor’s statement was made after the close of both cases and was not put directly to the appellant. However, it is plain that the prosecutor believed she had put it adequately.[325] That turned out to be a mistaken view, but it serves to characterise this misstep at the lower end on what might be said to be prosecutorial misconduct.[325]AB 763 line 15 to AB 764 line 14; AB 770 line 33 to AB 772 line 19. Secondly, at no time did experienced defence Counsel make an application for a mistrial. Instead, defence Counsel sent a document to the prosecutor overnight, setting out the defence case as to what the CCTV footage actually showed. That led the prosecutor to propose a form of words that she would say to the jury: see paragraph [290] above. Significantly, that proposal did not include the document being given to the jury or made an exhibit. Defence Counsel submitted successfully that his document should be tendered as a “fulsome explanation by the defence as to what can be seen in that session of footage”. In context, that meant that the document contained all that could have been said by the defence on that point. That was, in my view, a submission that proceeded on the basis that the unfairness could be overcome by taking the course defence Counsel proposed. Thirdly, the learned trial judge ruled in favour of the course proposed by defence Counsel. Even though defence Counsel had not sought a mistrial, it is evident that the learned trial judge did not take the view that the unfairness was such that it could not be overcome. Defence Counsel and the learned trial judge did not consider that the issue was so clear that the prosecutor should be directed to withdraw the submission. Nor was it considered necessary to direct the jury that what the prosecutor said could be seen on the video could not, in fact, be seen. Fourthly, a form of words was then proposed which included the tender of the defence’s document. In response, defence Counsel said, “I’m content with that”. Not only was that an acceptance that those steps would cure any unfairness, it was also a conscious step not to make an application for a mistrial, or to seek further directions. Fifthly, in the circumstances, the prosecutor’s conduct did not cause an unfair trial. Rather, the case comes within that category referred to by Deane J in Whitehorn v The Queen,[326] where his Honour said:[327]“Prosecuting counsel in a criminal trial represents the State. The accused, the court and the community are entitled to expect that, in performing his function of presenting the case against an accused, he will act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused's trial is a fair one. The consequence of a failure to observe the standards of fairness to be expected of the Crown may be insignificant in the context of an overall trial. Where that is so, departure from those standards, however regrettable, will not warrant the interference of an appellate court with a conviction. On occasion however, the consequences of such a failure may so affect or permeate a trial as to warrant the conclusion that the accused has actually been denied his fundamental right to a fair trial. As a general proposition, that will, of itself, mean that there has been a serious miscarriage of justice with the consequence that any conviction of the accused should be quashed and, where appropriate, a new trial ordered (Criminal Law Consolidation Act, s. 353; Reg. v. Clewer (1953) 37 Cr. App. R. 37, at pp. 39–40. If there be exceptions to that general proposition, they do not presently occur to me.”[326](1983) 152 CLR 657; [1983] HCA 42.[327]Whitehorn at 663–664. Emphasis added.