R v Fitzgerald - [2022] QCA 203

SUPREME COURT OF QUEENSLAND

CITATION:

R v Fitzgerald [2022] QCA 203

PARTIES:

R
v
FITZGERALD, John Matthew
(appellant)

FILE NO/S:

CA No 80 of 2021
SC No 239 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 26 March 2021 (Brown J)

DELIVERED ON:

Date of Orders: 10 February 2022
Date of Publication of Reasons: 21 October 2022

DELIVERED AT:

Brisbane

HEARING DATE:

10 February 2022

JUDGES:

Morrison, Mullins and Bond JJA

ORDERS:

Date of Orders: 10 February 2022:

1.   Appeal allowed.

2.   Conviction set aside.

3.   A retrial ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where the appellant was charged with attempted murder and in the alternative malicious act with intent or grievous bodily harm – where the jury convicted the appellant of malicious act with intent – where the complainant was stabbed in the neck – where the main issues at trial were the identity of the complainant’s attacker and if the jury were satisfied it was the appellant – whether the appellant had the specific intents necessary to prove either attempted murder or malicious act with intent – where there were multiple witnesses and there were inconsistencies in the evidence given by these witnesses – where the appellant did not give evidence and had not participated in a police record of interview – where the trial judge gave the usual directions about the burden of proof resting on the prosecution and that the jury had to be satisfied of the appellant’s guilt beyond a reasonable doubt – whether a direction in accordance with Azzopardi v The Queen should have been given by the trial judge about the appellant’s silence – whether a miscarriage of justice occurred as a result of the trial judge’s failing to direct the jury that no adverse inference could be drawn from the failure of the appellant to give evidence

CriminalCode (Qld), s 668E

Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25, cited
Orreal v The Queen (2021) 96 ALJR 78; [2021] HCA 44, cited
R v Hartfiel[2014] QCA 132, considered
R v Smallwood[2021] QCA 132, considered

COUNSEL:

P J Wilson for the appellant
S L Dennis for the respondent

SOLICITORS:

Cridland & Hua Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

THE COURT: The appellant, Mr Fitzgerald, was charged with attempted murder of the complainant and in the alternative malicious act with intent or grievous bodily harm. He was acquitted by a jury after a trial in the Supreme Court of attempted murder and convicted of the alternative count of malicious act with intent. The only ground of appeal was that a miscarriage of justice occurred as a result of the learned trial judge’s failing to direct the jury that no adverse inferences could be drawn from the failure of the appellant to…

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 Fitzgerald

Details

AGLC: R v Fitzgerald [2022] QCA 203
Case: [2022] QCA 203
Decision Date: 10 February 2022

CaseChat Overview and Summary

The appellant, Fitzgerald, appealed against a conviction for a malicious act with intent. The trial had been for attempted murder and in the alternative, a malicious act with intent or grievous bodily harm. The jury convicted the appellant of the latter. The complainant had been stabbed in the neck, almost severing his carotid artery and left jugular vein. The main issues at trial were the identity of the complainant’s attacker and whether the jury were satisfied it was the appellant. Another issue was whether the appellant had the specific intents necessary to prove either attempted murder or malicious act with intent. The trial judge gave the usual directions about the burden of proof resting on the prosecution and that the jury had to be satisfied of the appellant’s guilt beyond a reasonable doubt. The appellant did not give evidence and had not participated in a police record of interview. The appellant’s counsel submitted that a direction in accordance with Azzopardi v The Queen should have been given by the trial judge about the appellant’s silence. The respondent conceded that it was unlikely that the failure of the appellant’s trial counsel to ask for a redirection was a forensic decision.

The court found that the direction in accordance with Azzopardi v The Queen should have been given by the trial judge. The court noted that the failure to give such a direction could be a miscarriage of justice. The court held that in this case, the failure to give such a direction led to a miscarriage of justice. The trial judge should have directed the jury that no adverse inference could be drawn from the failure of the appellant to give evidence. The court found that it was open to the jury to be satisfied beyond reasonable doubt that the appellant was the person who stabbed the complainant. However, the court was not satisfied beyond reasonable doubt that the appellant had the specific intents necessary to prove either attempted murder or malicious act with intent.

The court held that the appellant’s conviction should be set aside and a retrial ordered. The court noted that the direction in accordance with Azzopardi v The Queen should have been given by the trial judge. The court found that the failure to give such a direction led to a miscarriage of justice. The court held that it was open to the jury to be satisfied beyond reasonable doubt that the appellant was the person who stabbed the complainant. However, the court was not satisfied beyond reasonable doubt that the appellant had the specific intents necessary to prove either attempted murder or malicious act with intent. The court held that the appeal should be allowed, the conviction set aside, and a retrial ordered.

Orders

Orders of the court

Date of Orders: 10 February 2022:

1. Appeal allowed.

2. Conviction set aside.

3. A retrial ordered.

Background

Background to the litigation

It was common ground on the appeal that the direction in accordance with Azzopardi v The Queen (2001) 205 CLR 50 at [51] and [67] should have been given by the trial judge. It is unfortunate that oversight was not noticed at the time by the trial counsel who were not the counsel who appeared on this appeal. The respondent concedes appropriately that it is unlikely that the failure of the appellant’s trial counsel to ask for a redirection was a forensic decision.Background The complainant arrived in the evening of 18 April 2019 at a unit at Woolloongabba which was rented by Ms Ward and at which her partner Mr Griffiths and other people were present. On his arrival, the complainant argued first with Ms Stevens and Mr Mancktelow. The argument ended when one of the persons present, Mr Byrnes, intervened. The prosecution case at trial was that the appellant, armed with a knife, then entered the room and stabbed the complainant in the neck resulting in his carotid artery and left jugular vein being almost completely severed. The complainant fled and soon after collapsed. He was treated at the Princess Alexandra Hospital and survived. The complainant did not give evidence at trial. There were two substantial issues at trial. The critical issue was the identity of the complainant’s attacker. If the jury were satisfied beyond reasonable doubt that Mr Fitzgerald stabbed the complainant, the other issue was whether Mr Fitzgerald had the specific intents necessary to prove either attempted murder or malicious act with intent.Witnesses to the stabbing Mr Byrnes was also a visitor to the unit on the night in question. On realising that his former partner, Ms Stevens, was there, he went outside and sat on a seat next to a birdcage. He had been there for 10 or 15 minutes when “Fitzy” (whom he had first met six months previously and on four or five occasions) came over and started talking to him and also sat down. Mr Byrnes then noticed the complainant come up the driveway and walk up the stairs. Mr Byrnes could then hear arguing inside. He could hear Mr Mancktelow’s voice. He then heard his former partner’s voice. They were saying that “you can’t just … barge into someone’s house”. Mr Byrnes got up and walked in through the back door into the lounge room and noticed the complainant on the lounge and that there was an argument between him and Mr Mancktelow and Ms Stevens who were also seated. The complainant was saying that they could not tell him what to do. Mr Byrnes squatted down near the complainant and tapped him on the forehead to get him to listen to him. Mr Byrnes spoke to the complainant and the argument stopped. Mr Byrnes then stood up and moved away. He then noticed that Fitzy had walked in the door and stood beside the complainant and mumbled a few words. Mr Byrnes saw that Fitzy had something in his hand and he just hit the complainant on the side of the neck. That is when Mr Byrnes noticed that Fitzy was holding a sharp knife sort of instrument in his hand and that blood had started to run down the complainant. Mr Byrnes asked Fitzy why he had done that and he replied something about “respect”. Mr Byrnes identified Fitzy as the appellant.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Fitzgerald [2022] QCA 203
PARTIES:	R v FITZGERALD, John Matthew (appellant)
FILE NO/S:	CA No 80 of 2021 SC No 239 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Conviction: 26 March 2021 (Brown J)
DELIVERED ON:	Date of Orders: 10 February 2022 Date of Publication of Reasons: 21 October 2022
DELIVERED AT:	Brisbane
HEARING DATE:	10 February 2022
JUDGES:	Morrison, Mullins and Bond JJA
ORDERS:	Date of Orders: 10 February 2022: 1. Appeal allowed. 2. Conviction set aside. 3. A retrial ordered.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where the appellant was charged with attempted murder and in the alternative malicious act with intent or grievous bodily harm – where the jury convicted the appellant of malicious act with intent – where the complainant was stabbed in the neck – where the main issues at trial were the identity of the complainant’s attacker and if the jury were satisfied it was the appellant – whether the appellant had the specific intents necessary to prove either attempted murder or malicious act with intent – where there were multiple witnesses and there were inconsistencies in the evidence given by these witnesses – where the appellant did not give evidence and had not participated in a police record of interview – where the trial judge gave the usual directions about the burden of proof resting on the prosecution and that the jury had to be satisfied of the appellant’s guilt beyond a reasonable doubt – whether a direction in accordance with Azzopardi v The Queen should have been given by the trial judge about the appellant’s silence – whether a miscarriage of justice occurred as a result of the trial judge’s failing to direct the jury that no adverse inference could be drawn from the failure of the appellant to give evidence CriminalCode (Qld), s 668E Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25, cited Orreal v The Queen (2021) 96 ALJR 78; [2021] HCA 44, cited R v Hartfiel[2014] QCA 132, considered R v Smallwood[2021] QCA 132, considered
COUNSEL:	P J Wilson for the appellant S L Dennis for the respondent
SOLICITORS:	Cridland & Hua Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent