R v Greenwood - [2002] QCA 360

SUPREME COURT OF QUEENSLAND

CITATION:

R v Greenwood [2002] QCA 360

PARTIES:

R

v

GREENWOOD, Mark
(appellant)

FILE NO/S:

CA No 68 of 2002
DC No 351 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

20 September 2002

DELIVERED AT:

Brisbane

HEARING DATE:

5 September 2002

JUDGES:

Williams and Jerrard JJA and Atkinson 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 – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – SELF-DEFENCE AND OTHER FORMS OF DEFENCE – GENERALLY – where appellant convicted of grievous bodily harm pleaded self-defence against unprovoked assault and aiding in self-defence pursuant to s 271 and s 273 respectively of the Criminal Code (Qld) – where only evidence thereof was based on appellant’s testimony and that of his defacto spouse that the complainant threatened to kill the appellant – whether the directions of the learned trial judge on the operation and effect of s 271(2) confused the jury in assessing the state of mind of the appellant as to whether the test is subjective or objective – consideration of the distinction in tests between s 271(1) and (2) of the code – Marwey v The Queen followed – whether the directions of the learned trial judge did not clearly distinguish the tests between those provisions

APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – MISCARRIAGE OF JUSTICE - CIRCUMSTANCES NOT INVOLVING MISCARRIAGE – WHERE RESULT OF TRIAL NOT AFFECTED – NO EFFECT ON JURY’S MINDS – whether the learned trial judge erred in directing the jury on the relevant tests to be applied in relation to self defence pursuant to s 271(1), s 271(2) and s 273 of the Criminal Code (Qld) – whether the use of the term ‘reasonably necessary’ on that one occasion in directing on s 271(2) amounted to a misdirection because it stipulated an additional objective requirement over and above the need for the defender’s belief to be based on reasonable grounds – R v Vidler followed

Criminal Code Act 1899 (Qld), s 271(1), s271(2), s 273

Marwey v The Queen (1977) 138 CLR 630, applied
R v Corcoran [2000] QCA 114, CA No 359 of 1999, 7 April 2000, considered
R v Gray (1998) 98 A Crim R 589, followed
R v Hagarty [2001] QCA 558, CA No 243 of 2001, 7 December 2001, followed
R v Julian (1998) 100 A Crim R 430, considered
R v Muratovic [1967] Qd R 15, applied
R v Vidler (2000) 110 A Crim R 77, followed

COUNSEL:

H Walters for the appellant
R G Martin for the respondent

SOLICITORS:

Director of Public Prosecutions (Queensland) for the respondent

WILLIAMS JA: The appellant was convicted in the District Court at Townsville of doing grievous bodily harm to one Bramich. A sentence of three years’ imprisonment was imposed. At the 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 Greenwood

Details

AGLC: R v Greenwood [2002] QCA 360
Case: [2002] QCA 360
Decision Date: 20 September 2002

CaseChat Overview and Summary

The appeal arose from the conviction of the appellant, Greenwood, for grievous bodily harm committed in circumstances where he claimed self-defence against an unprovoked assault. Greenwood pleaded self-defence and aiding in self-defence under sections 271 and 273 of the Criminal Code (Qld), respectively. The appellant's case rested on his testimony and that of his defacto spouse, who claimed the complainant threatened to kill Greenwood. The primary legal issue before the court was whether the trial judge's directions to the jury regarding the operation and effect of section 271(2) confused them in assessing the appellant's state of mind, specifically whether the test was subjective or objective. The court also needed to determine if the judge's directions adequately distinguished between the tests required by sections 271(1) and 271(2) of the code.

The court considered the distinction between the subjective and objective tests applicable to self-defence provisions. It found that the trial judge's directions on section 271(2) may have inadvertently introduced an additional objective requirement, which was not necessary under the statute. The court followed the precedent set in Marwey v The Queen, which emphasised the importance of clearly distinguishing between the subjective and objective tests in jury directions. The court also noted the appellant's argument that the use of the term 'reasonably necessary' in directing on section 271(2) amounted to a misdirection, as it implied an objective standard beyond the reasonable grounds for the belief held by the defender. This argument was supported by R v Vidler, which clarified that the requirement for the defender's belief to be based on reasonable grounds was sufficient.

However, the court held that the trial judge's misdirection, if any, did not result in a miscarriage of justice. The evidence presented was such that the jury's minds would not have been affected by the misdirection, leading to the conclusion that the result of the trial was unaffected. Consequently, the appeal against the conviction was dismissed. The court's final order was to dismiss the appeal against Greenwood's conviction.

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 Greenwood [2002] QCA 360
PARTIES:	R v GREENWOOD, Mark (appellant)
FILE NO/S:	CA No 68 of 2002 DC No 351 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	20 September 2002
DELIVERED AT:	Brisbane
HEARING DATE:	5 September 2002
JUDGES:	Williams and Jerrard JJA and Atkinson 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 – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – SELF-DEFENCE AND OTHER FORMS OF DEFENCE – GENERALLY – where appellant convicted of grievous bodily harm pleaded self-defence against unprovoked assault and aiding in self-defence pursuant to s 271 and s 273 respectively of the Criminal Code (Qld) – where only evidence thereof was based on appellant’s testimony and that of his defacto spouse that the complainant threatened to kill the appellant – whether the directions of the learned trial judge on the operation and effect of s 271(2) confused the jury in assessing the state of mind of the appellant as to whether the test is subjective or objective – consideration of the distinction in tests between s 271(1) and (2) of the code – Marwey v The Queen followed – whether the directions of the learned trial judge did not clearly distinguish the tests between those provisions APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – MISCARRIAGE OF JUSTICE - CIRCUMSTANCES NOT INVOLVING MISCARRIAGE – WHERE RESULT OF TRIAL NOT AFFECTED – NO EFFECT ON JURY’S MINDS – whether the learned trial judge erred in directing the jury on the relevant tests to be applied in relation to self defence pursuant to s 271(1), s 271(2) and s 273 of the Criminal Code (Qld) – whether the use of the term ‘reasonably necessary’ on that one occasion in directing on s 271(2) amounted to a misdirection because it stipulated an additional objective requirement over and above the need for the defender’s belief to be based on reasonable grounds – R v Vidler followed Criminal Code Act 1899 (Qld), s 271(1), s271(2), s 273 Marwey v The Queen (1977) 138 CLR 630, applied R v Corcoran [2000] QCA 114, CA No 359 of 1999, 7 April 2000, considered R v Gray (1998) 98 A Crim R 589, followed R v Hagarty [2001] QCA 558, CA No 243 of 2001, 7 December 2001, followed R v Julian (1998) 100 A Crim R 430, considered R v Muratovic [1967] Qd R 15, applied R v Vidler (2000) 110 A Crim R 77, followed
COUNSEL:	H Walters for the appellant R G Martin for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the respondent