R v Gray - [1998] QCA 41

IN THE COURT OF APPEAL	[1998] QCA 041
SUPREME COURT OF QUEENSLAND

C.A. No. 439 of 1997

Brisbane

[R. v. Gray]

T H E Q U E E N

DAVID JOSEPH GRAY Appellant
McPherson J.A.
Davies J.A.
Fryberg J.

Judgment delivered 13 March 1998

Separate reasons for judgment of each member of the Court; each concurring as to the orders made.

APPEAL AGAINST CONVICTIONS ALLOWED. CONVICTIONS QUASHED. VERDICTS OF GUILTY SET ASIDE. NEW TRIAL ORDERED ON COUNTS 1 AND 2 LIMITED RESPECTIVELY TO CHARGES OF MANSLAUGHTER AND DOING GRIEVOUS BODILY HARM.

CATCHWORDS:	CRIMINAL LAW - MANSLAUGHTER - GRIEVOUS BODILY HARM - Self-defence - s.271 Criminal Code - Whether jury properly directed on elements of ss.271(1) and (2) - Whether conditions in s.271(1) are cumulative upon those in s.271(2) - Whether evidence of witness wrongly excluded.
*Marwey v. The Queen* (1977) 138 C.L.R. 630; R. v. Muratovic [1967] Qd.R. 15
Counsel:	Mr Butler S.C. for the appellant Mr P.F. Rutledge for the respondent
Solicitors:	Paul Richards & Associates for the appellant Director of Public Prosecutions (Queensland) for the respondent
Hearing Date:	4 March 1998

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 13 March 1998

The appellant was brought to trial in the Supreme Court on an indictment charging him in count 1 with the murder of Phillip Goatley; in count 2, with doing grievous bodily harm to Rohan Tidswell with intent to do grievous bodily harm; and, in count 3, with unlawfully wounding Keith Jealous. He was found not guilty of the offence charged in count 3 and those charged in counts 1 and 2; but guilty on count 1 of the manslaughter of Goatley and on count 2 of doing grievous bodily harm to Tidswell. In substance, therefore, the jury acquitted the appellant of the offences in the first two counts involving in each case an element of intention. As to count 3, it is a permissible inference from the evidence at the trial, that the jury were left in doubt whether or not the wounding in question might not have been an accident within the meaning of s.23 of the Criminal Code.

The substantial defence raised by the appellant at his trial was one of self-defence within the meaning of s.271 of the Code of himself and his family. The complainants named in each of the counts were members of a local “bikie” group known as the Rebels Club. There was a history of mutual animosity, stretching back some months before the date of the alleged offences on 26 June 1996, between the appellant and members of the Rebel group. The appellant is a retired former employee of the Department of Defence, almost 54 years of age at the time in question, who lived with his wife, children and grandchildren at a rented house at 343 East Street, Rockhampton. He is an Aboriginal, and there is little doubt that racial disharmony played a part in bringing about the incident giving rise to these charges. Insults had from…

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 Gray

Details

AGLC: R v Gray [1998] QCA 41
Case: [1998] QCA 41
Decision Date: 13/03/1998

CaseChat Overview and Summary

In the matter of the Crown versus Gray, the accused was charged with manslaughter following an incident where he inflicted grievous bodily harm upon the deceased. The case was heard in the High Court of Australia. The central dispute revolved around whether the accused was acting in self-defence, as claimed, or whether his actions were excessive and unlawful, resulting in the death of the deceased.

The primary legal issue before the court was whether the jury had been properly directed on the elements of sections 271(1) and 271(2) of the Criminal Code in relation to self-defence. A further issue was whether the conditions set out in section 271(1) are cumulative upon those in section 271(2). The court also had to consider whether evidence from a key witness was wrongly excluded, potentially impacting the fairness of the trial.

The High Court examined the statutory provisions and concluded that the conditions in section 271(1) are indeed cumulative upon those in section 271(2), meaning that both sets of conditions must be satisfied for a successful self-defence claim. The court found that the jury had not been properly directed on these elements, leading to potential misdirection. Furthermore, the exclusion of the witness's evidence was deemed to have materially affected the trial's outcome. Consequently, the court quashed the conviction and ordered a retrial.

Orders