R v Faulkner - [2017] QCA 301

SUPREME COURT OF QUEENSLAND

CITATION:

R v Faulkner [2017] QCA 301

PARTIES:

R
v
FAULKNER, Dennis Hecta Tipene
(appellant/applicant)

FILE NO/S:

CA No 152 of 2017
DC No 427 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Southport – Date of Conviction: 14 June 2017; Date of Sentence 16 June 2017 (Kent QC DCJ)

DELIVERED ON:

8 December 2017

DELIVERED AT:

Brisbane

HEARING DATE:

1 December 2017

JUDGES:

Fraser and Morrison JJA and Henry J

ORDERS:

1.   The appeal is allowed.

2.   The conviction entered on 14 June 2017 and the orders made on 16 June 2017 are set aside.

3.   A new trial is ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted after trial of one count of grievous bodily harm – where the appellant was sentenced to two years and six months’ imprisonment, suspended after 12 months, with an operational period of three years – where the appellant appeals against his conviction and seeks leave to appeal against his sentence – where the conviction appeal is brought on the grounds that a miscarriage of justice resulted from the learned trial judge’s response to a jury question about self-defence, that re-directions on the issue of self-defence caused the appellant to be denied procedural fairness and that the learned trial judge failed to direct the jury with respect to pre-emptive strike – where the offence was captured on CCTV footage – where the footage shows a series of interactions between the appellant and complainant spanning some minutes – where the jury inquired as to the point in time at which self-defence must be proven – where the learned trial judge suggested that self-defence must be in response to an immediate threat – where the learned trial judge’s commentary would have been received as a direction, causing the jury to confine their consideration of self-defence to the period immediately before the offence – whether there has been a miscarriage of justice – whether a re-trial is necessary

Criminal Code (Qld), s 271

R v Beetham[2014] QCA 131, cited
R v De Silva (2007) 176 A Crim R 238; [2007] QCA 301, applied
R v Muratovic [1967] Qd R 15, followed
R v Pangilinan [2001] 1 Qd R 56; [1999] QCA 528, cited
Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645; [1987] HCA 26, followed

COUNSEL:

M L Longhurst for the appellant/applicant
C N Marco for the respondent

SOLICITORS:

Donnelly Law Group for the appellant/applicant
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: I agree with the reasons for judgment of Morrison JA and the orders proposed by his Honour.
MORRISON JA: In the course of an altercation between himself and the complainant, Mr Faulkner, a security guard at a hotel, punched the complainant and broke his jaw.
On 14 June 2017 he was convicted after a trial…

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 Faulkner

Details

AGLC: R v Faulkner [2017] QCA 301
Case: [2017] QCA 301
Decision Date: 8 December 2017

CaseChat Overview and Summary

The appellant, Faulkner, appealed against his conviction and sentence for grievous bodily harm, arguing that the trial judge misdirected the jury on the issue of self-defence, resulting in a miscarriage of justice. The court was required to determine whether the trial judge's response to a jury question about self-defence caused a miscarriage of justice, whether the re-directions on the issue of self-defence denied the appellant procedural fairness, and whether the trial judge failed to direct the jury on the issue of a pre-emptive strike. The court held that the trial judge's response to the jury's question about self-defence had the effect of a direction, limiting the jury's consideration of self-defence to the period immediately before the offence. This was a misdirection of the law and caused a miscarriage of justice. The court further held that the re-directions on the issue of self-defence denied the appellant procedural fairness, as they did not adequately address the misdirection. The court found that the trial judge failed to direct the jury on the issue of a pre-emptive strike, which was a relevant consideration in the appellant's defence. The appeal was allowed, the conviction and sentence were set aside, and a new trial was ordered.

Orders

Orders of the court

1. The appeal is allowed.

2. The conviction entered on 14 June 2017 and the orders made on 16 June 2017 are set aside.

3. A new trial is ordered.

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 Faulkner [2017] QCA 301
PARTIES:	R v FAULKNER, Dennis Hecta Tipene (appellant/applicant)
FILE NO/S:	CA No 152 of 2017 DC No 427 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Southport – Date of Conviction: 14 June 2017; Date of Sentence 16 June 2017 (Kent QC DCJ)
DELIVERED ON:	8 December 2017
DELIVERED AT:	Brisbane
HEARING DATE:	1 December 2017
JUDGES:	Fraser and Morrison JJA and Henry J
ORDERS:	1. The appeal is allowed. 2. The conviction entered on 14 June 2017 and the orders made on 16 June 2017 are set aside. 3. A new trial is ordered.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted after trial of one count of grievous bodily harm – where the appellant was sentenced to two years and six months’ imprisonment, suspended after 12 months, with an operational period of three years – where the appellant appeals against his conviction and seeks leave to appeal against his sentence – where the conviction appeal is brought on the grounds that a miscarriage of justice resulted from the learned trial judge’s response to a jury question about self-defence, that re-directions on the issue of self-defence caused the appellant to be denied procedural fairness and that the learned trial judge failed to direct the jury with respect to pre-emptive strike – where the offence was captured on CCTV footage – where the footage shows a series of interactions between the appellant and complainant spanning some minutes – where the jury inquired as to the point in time at which self-defence must be proven – where the learned trial judge suggested that self-defence must be in response to an immediate threat – where the learned trial judge’s commentary would have been received as a direction, causing the jury to confine their consideration of self-defence to the period immediately before the offence – whether there has been a miscarriage of justice – whether a re-trial is necessary Criminal Code (Qld), s 271 R v Beetham[2014] QCA 131, cited R v De Silva (2007) 176 A Crim R 238; [2007] QCA 301, applied R v Muratovic [1967] Qd R 15, followed R v Pangilinan [2001] 1 Qd R 56; [1999] QCA 528, cited Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645; [1987] HCA 26, followed
COUNSEL:	M L Longhurst for the appellant/applicant C N Marco for the respondent
SOLICITORS:	Donnelly Law Group for the appellant/applicant Director of Public Prosecutions (Queensland) for the respondent