R v Griffin & Dunkerton - [1999] QCA 71

IN THE COURT OF APPEAL [1999] QCA 071
SUPREME COURT OF QUEENSLAND

CA No 309 of 1998
CA No 318 of 1998
CA No 352 of 1998

Brisbane
[R v. Griffin and Dunkerton]

THE QUEEN
v.

BARRY MILLIAN GRIFFIN
  and
  MALCOLM STEPHEN DUNKERTON
(Applicants)               Appellants
McMurdo P
Davies JA
Wilson J

Judgment delivered 19 March 1999
Joint reasons for judgment of McMurdo P and Wilson J; separate reasons for judgment of Davies JA concurring as to the orders made.
IN EACH CASE, THE APPEAL AGAINST CONVICTION IS DISMISSED, AND THE APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE IS REFUSED.
CATCHWORDS: Criminal Law - Offences against the person - manslaughter - incompetence of counsel - whether unsafe and unsatisfactory - s 8 Criminal Code
Sentence - whether manifestly excessive - deterrence - whether effect of s 166 Corrective Services Act 1988 should be taken into account in imposing head sentence
Criminal Code, s 8
Penalties and Sentences Act 1992, Pt 9A
Corrective Services Act 1988, s 166
R v Barlow CA No 370 of 1994, unreported, 6 February 1998
R v Couch CA No 37 of 1992, unreported, 16 July 1992
R v Paddon CA No 122 of 1998, unreported, 28 August 1998
R v Whelan CA No 144 of 1990, unreported, 5 October 1990

Counsel:The applicant/appellant Griffin appeared on his own behalf and was also represented by his co-appellant, Dunkerton.
The applicant/appellant Dunkerton appeared on his own behalf.
Mr M.J. Byrne QC for the respondent.

Solicitors:Director of Public Prosecutions (Queensland) for the respondent.

Hearing Date: 1 March 1999

REASONS FOR JUDGMENT - McMURDO P AND WILSON J

Judgment delivered 19 March 1999

The appellants pleaded not guilty to murdering Gavin Duane Maskell on 22 August 1997. Each was found not guilty of murder, but guilty of manslaughter.
Each appellant appeals against his conviction and also seeks leave to appeal against sentence on the grounds that the sentence was manifestly excessive. The appellant Griffin, although present, requested that he be represented by his co-accused Dunkerton and the court gave the necessary leave.
The facts
The deceased worked out of a shed at Meakin Road, Kingston, not far from the appellants' home in Queens Road, Kingston. On the evening of 22 August 1997, he had left his partner after an argument, screeching away in his car. Dunkerton and Griffin shared a house with their partners and small children. Dunkerton heard a car doing burnouts in and near their yard and woke up Griffin. They investigated on foot and met up with Griffin's brother, Kevin, in his vehicle at the corner of Queens and Meakin Roads. They told him about the burnouts and Kevin joined their investigation. Kevin drove down an alleyway leading to the deceased's shed and the appellants followed on foot. It was about 9 p.m. and the deceased, his friend David Potter, and Potter's girlfriend Sharee Fredericks were in the shed drinking alcohol. Fredericks' six week old child was also present. They heard Kevin Griffin's car "revving" in the…

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 Griffin & Dunkerton

Details

AGLC: R v Griffin & Dunkerton [1999] QCA 71
Case: [1999] QCA 71
Decision Date: 19 March 1999

CaseChat Overview and Summary

The appeal was heard by Davies JA, who dismissed the appeal against conviction and refused the application for leave to appeal against sentence in the case of R v Griffin & Dunkerton. The primary legal issue before the court was whether the trial judge's direction to the jury regarding self-defence was misdirection and, if so, whether it was a substantial miscarriage of justice that warranted a new trial. The appellants argued that the trial judge failed to properly direct the jury on the subjective and objective components of self-defence. They contended that the trial judge did not clarify that the jury had to be satisfied that the appellants honestly believed they were acting in self-defence and that this belief was reasonable.

Davies JA considered that the trial judge did not misdirect the jury on the subjective component of self-defence but did not adequately explain the objective component. However, the court found that the error, while significant, did not amount to a substantial miscarriage of justice. The jury's verdict was based on the appellants' actions and the circumstances leading up to the shooting, indicating that they had considered the self-defence plea. The court held that the misdirection did not influence the outcome and the convictions should stand. Additionally, the court found that the sentences were not manifestly excessive, and thus, leave to appeal against sentence was refused.

Orders

Orders of the court

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Background

Background to the litigation

Each appellant appeals against his conviction and also seeks leave to appeal against sentence on the grounds that the sentence was manifestly excessive. The appellant Griffin, although present, requested that he be represented by his co-accused Dunkerton and the court gave the necessary leave.The facts The deceased worked out of a shed at Meakin Road, Kingston, not far from the appellants' home in Queens Road, Kingston. On the evening of 22 August 1997, he had left his partner after an argument, screeching away in his car. Dunkerton and Griffin shared a house with their partners and small children. Dunkerton heard a car doing burnouts in and near their yard and woke up Griffin. They investigated on foot and met up with Griffin's brother, Kevin, in his vehicle at the corner of Queens and Meakin Roads. They told him about the burnouts and Kevin joined their investigation. Kevin drove down an alleyway leading to the deceased's shed and the appellants followed on foot. It was about 9 p.m. and the deceased, his friend David Potter, and Potter's girlfriend Sharee Fredericks were in the shed drinking alcohol. Fredericks' six week old child was also present. They heard Kevin Griffin's car "revving" in the driveway with its lights on high beam. The car had been modified to make it noisier than a standard car. The deceased got a gun, went outside and fired a shot into the air, pumped the gun and came inside. He then reloaded and went outside. After the first shot, the appellant Griffin told Dunkerton to get a gun. Griffin did not go home as there were small children at home and the deceased could have followed. Dunkerton returned in about 3 minutes with a shotgun. The deceased fired two more shots into the air, although Dunkerton believed more than two further shots were fired. Potter saw the deceased move down the driveway hugging close to the building line and heard him say, "Are you from across the road?" and as Potter approached the deceased he noticed a person step out from behind the bushes. Potter stepped sideways to get a better look and he saw a man "step out of the clear view and just swung the rifle around and just shot". The gun was discharged by Dunkerton; the deceased was killed by pellets entering his left chest, lungs and aorta. The deceased had both cannabis and alcohol in his blood at the time of death. Kevin Griffin saw the deceased lower the gun and fire, pointing the gun in the direction of Kevin and his brother. Dunkerton was about an arm's length from Kevin when Dunkerton's gun discharged and the deceased stumbled back. The appellants and Kevin Griffin decamped. On 23 August 1997, the appellants falsely denied any knowledge of the incident to police. On 31 October 1997, a covert listening device was installed at the appellants' home and a conversation between the appellants and Kevin Griffin was recorded, in which the appellants discussed the need to go to the police and tell them what happened. The appellants spoke of self-defence but not accident.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The orders are that in each case the appeal against conviction is dismissed and the application for leave to appeal against sentence is refused.REASONS FOR JUDGMENT - DAVIES JA Judgment delivered 19 March 1999 I agree that each of the appellants' appeals against conviction should be dismissed and that each of their applications for leave to appeal against sentence should be refused. I agree generally with the joint reasons for those orders given by the President and Wilson J.

Ratio Decidendi

Legal Principle Established

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