R v Fietkau - [1992] QCA 356

IN THE COURT OF APPEAL [1992] QCA 356

SUPREME COURT OF QUEENSLAND

C.A. No. 212 of 1992

T H E Q U E E N

ALEKSANDER FIETKAU

(Appellant)

REASONS FOR JUDGMENT OF THE COURT

Delivered the 21st day of October 1992

The appellant was convicted in the Supreme Court at Brisbane on

26 June 1992 of the murder of Stephen Ali on or about 25

September 1991. The appellant, who gave lengthy tape recorded

interviews to the police and who also gave evidence at the

trial, admitted to stabbing Ali in the back with a large knife

and, a few minutes later, to hitting him on the head several times with a sledge hammer. The cause of death could not be

established but on the evidence had to be either the stabbing or the striking on the head with the sledge hammer or a combination

of both. The appellant relied on defences under ss. 273 and

31(3) of the Criminal Code.

The appellant was living in a house, apparently in a de facto

relationship with an aboriginal woman, Grace York. The other occupants of the house were a Ms. Deborah Finch and her friend, Malcolm Coch. On the night in question the appellant was awoken

by Ali at about 1 a.m. demanding entry to the house wanting a light for his cigarette. When the appellant refused Ali kicked

the door in and as the appellant came from his bedroom he was

attacked and assaulted by Ali. The appellant called out to Coch for help and shortly afterwards lost consciousness. When he

came to he saw Ali sitting on Coch's stomach or chest punching him in the face. There was blood on Coch's face, Coch's arms

were limp by his side and he appeared to be unconscious. The appellant said: "I didn't know how long Malcolm was going to last. From what I saw Malcolm was already unconscious and I

didn't know, you know, just didn't know if he was going to get up and hurt me again or hurt somebody, Grace or Debbie. I just didn't know."

The appellant left the room and found a knife. When he returned

Ali was still hitting Coch and he, the appellant, then stabbed

Ali in the back with the knife. Ali then slumped over and the

appellant revived Coch. The appellant said that, in stabbing Ali, he was not just defending Coch but also himself, Grace and the other woman. He felt that Ali was a danger to himself and

the household, a life threatening danger and he feared him very

much.

The appellant then went outside. When he came back into the

room within a few minutes he saw Ali sitting propped up against the doorway. He said that he didn't quite believe that he had

killed him. He looked for an object to hit him on the head with. He went to the shed outside the house and got a sledge hammer. He thought that if he did not…

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 Fietkau

Details

AGLC: R v Fietkau [1992] QCA 356
Case: [1992] QCA 356
Decision Date: 21/10/1992

CaseChat Overview and Summary

Aleksander Fietkau was convicted of murdering Stephen Ali in the Supreme Court of Queensland. The appellant admitted to stabbing Ali in the back and striking him with a sledgehammer. He claimed self-defence and defence of others, arguing that he believed Ali posed a life-threatening danger to him and others in the house. The appeal was based on two grounds: the trial judge's failure to properly direct the jury on self-defence under sections 273 and 31(3) of the Criminal Code. The court found that the trial judge did not err in his direction regarding self-defence, as the statutory provisions did not permit the appellant to use force to defend himself or others from an assault that was not occurring at the time of the stabbing. Additionally, the court held that section 31(3) of the Criminal Code does not extend to acts constituting the crime of murder, and thus, it had no application to the appellant's actions. The appeal was dismissed, and the conviction upheld.

MINUTES OF ORDER: Appeal against conviction dismissed.

Orders