R v Glebow - [2002] QCA 442

SUPREME COURT OF QUEENSLAND

CITATION:

R v Glebow [2002] QCA 442

PARTIES:

R
v
GLEBOW, Gregory George
(appellant)

FILE NO/S:

CA No 85 of 2002
SC No 374 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

25 October 2002

DELIVERED AT:

Brisbane

HEARING DATE:

16 August 2002

JUDGES:

Davies and Jerrard JJA and Mackenzie J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal against conviction dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – TESTS – WHETHER JURY WOULD HAVE RETURNED SAME VERDICT – MISDIRECTION AND NON-DIRECTION – where appellant contends that the jury could not have been satisfied beyond reasonable doubt that he intended to cause either the death of or grievous bodily harm to the deceased – where learned trial judge directed the jury that where there was no direct evidence of the necessary intention, it could be inferred from the facts which had been proved beyond reasonable doubt – where the critical fact proved was that the appellant repeatedly kicked the deceased, while inert, in the head – where directions given by learned trial judge on proof of intent were supported by authority – where neither counsel nor jury sought redirections on the nature or proof of intent – whether learned trial judge adequately explained the legal concept of criminal intent to the jury

Ianella v French (1976) 119 CLR 84, considered
Parker v The Queen (1962-63) 111 CLR 610, followed
R v Hughes (1994) 76 A Crim R 177, followed
R v Wilmott (No.2) [1985] 2 Qd R 413, applied
Royall v R (1990) 172 CLR 378, considered
Stapleton v The Queen (1952) 86 CLR 358, followed

COUNSEL:

T Carmody SC for the appellant
S G Bain for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

DAVIES JA: I agree that this appeal must be dismissed. Subject to what I am about to say I agree with the reasons of Jerrard JA.

It is important to remember that intent is a plain English word which does not need definition or elaboration. Attempts by a trial judge to do either may confuse and may even mislead a jury.

Of course it is permissible, and sometimes desirable in an appropriate case, to tell the jury:

1. that in ascertaining the defendant's intent they are drawing an inference from facts which they find established by the evidence concerning his or her state of mind;

2. that those facts may include the circumstances in which a relevant event occurred, the conduct of the defendant before, at the time of or even after that event and what the defendant has said at any of those times;

3. and that intent need not necessarily be long standing; it may be a momentary intent formed immediately before the occurrence…

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 Glebow

Details

AGLC: R v Glebow [2002] QCA 442
Case: [2002] QCA 442
Decision Date: 25 October 2002

CaseChat Overview and Summary

In the matter of R v Glebow, the appellant, Glebow, sought to appeal against his conviction for murder. The facts of the case involved the death of a deceased individual, where Glebow was found to have repeatedly kicked the deceased in the head while they were inert. The issue before the court was whether the trial judge had adequately directed the jury on the necessary intent required for a murder conviction, specifically whether the jury could have been satisfied beyond reasonable doubt that Glebow intended to cause either the death of or grievous bodily harm to the deceased. This issue arose from the appellant's argument that the jury could not have been satisfied of the necessary intent, given the lack of direct evidence.

The court examined the trial judge's directions to the jury regarding the proof of intent. The trial judge had directed the jury that, in the absence of direct evidence, intent could be inferred from the facts proved beyond reasonable doubt. The court noted that this direction was supported by relevant legal authorities and that no party sought clarification on the nature or proof of intent during the trial. The court concluded that the trial judge had adequately explained the legal concept of criminal intent to the jury and that the jury had been properly directed on the matter. Consequently, the appeal against the conviction was dismissed.

The court held that the jury would likely have returned the same verdict even if the directions had been differently phrased or more fully explained. The critical fact that the jury had found beyond reasonable doubt was that the appellant had repeatedly kicked the deceased in the head while they were inert, which supported the inference of the necessary intent. As the trial judge's directions were consistent with legal authority and no party had requested further clarification, the court found no basis to interfere with the jury's verdict. The appeal was dismissed, and the conviction for murder stood.

Orders

Orders of the court

Appeal against conviction dismissed

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Glebow [2002] QCA 442
PARTIES:	R v GLEBOW, Gregory George (appellant)
FILE NO/S:	CA No 85 of 2002 SC No 374 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	25 October 2002
DELIVERED AT:	Brisbane
HEARING DATE:	16 August 2002
JUDGES:	Davies and Jerrard JJA and Mackenzie J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal against conviction dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – TESTS – WHETHER JURY WOULD HAVE RETURNED SAME VERDICT – MISDIRECTION AND NON-DIRECTION – where appellant contends that the jury could not have been satisfied beyond reasonable doubt that he intended to cause either the death of or grievous bodily harm to the deceased – where learned trial judge directed the jury that where there was no direct evidence of the necessary intention, it could be inferred from the facts which had been proved beyond reasonable doubt – where the critical fact proved was that the appellant repeatedly kicked the deceased, while inert, in the head – where directions given by learned trial judge on proof of intent were supported by authority – where neither counsel nor jury sought redirections on the nature or proof of intent – whether learned trial judge adequately explained the legal concept of criminal intent to the jury Ianella v French (1976) 119 CLR 84, considered Parker v The Queen (1962-63) 111 CLR 610, followed R v Hughes (1994) 76 A Crim R 177, followed R v Wilmott (No.2) [1985] 2 Qd R 413, applied Royall v R (1990) 172 CLR 378, considered Stapleton v The Queen (1952) 86 CLR 358, followed
COUNSEL:	T Carmody SC for the appellant S G Bain for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent