R v Hung - [2012] QCA 341

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hung [2012] QCA 341

PARTIES:

R
v
HUNG, Wally James
(appellant)

FILE NO/S:

CA No 111 of 2012
SC No 158 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

7 December 2012

DELIVERED AT:

Brisbane

HEARING DATE:

7 November 2012

JUDGES:

Holmes and Muir JJA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Appeal against conviction allowed.

2.   Conviction and verdict set aside.

3.   A re-trial is ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where the appellant was convicted on one count of manslaughter – where the appellant had punched the deceased, causing his death – where the evidence about the extent of force of the punch was mixed – where the appellant argued that the trial judge misdirected the jury in relation to self-defence against unprovoked assault in s 271(1) of the Criminal Code – where the trial judge referred to the word “likely” in the context of “likely to cause death or grievous bodily harm” in s 271(1) as being a substantial likelihood, which might be less than 50/50 but had to be more than a remote or speculative possibility – where the trial judge directed on likelihood of death or grievous bodily harm and “possible outcome” in the context of accident in s 23 in almost identical terms – whether explaining what amounted to a substantial likelihood by distinguishing it from a remote or speculative possibility was a misdirection – whether equating “likely” in s 271(1) with “possible outcome” relating to accident in s 23 was a misdirection – whether a miscarriage of justice resulted

Criminal Code 1899 (Qld), s 1, s 8, s 23, s 271(1), s 271(2)
Criminal Code and other Legislation Amendment Act 2011 (Qld), s 4
Criminal Code 1924 (Tas), s 156(2), s 157(1)

Boughey v The Queen (1986) 161 CLR 10; [1986] HCA 29, considered
Darkan v The Queen (2006) 227 CLR 373; [2006] HCA 34, considered
R v Crossman [2011] 2 Qd R 435; [2011] QCA 126, considered
R v Hind and Harwood (1995) 80 A Crim R 105; [1995] QCA 202, cited
R v Taiters; ex parte Attorney-General (Qld) [1997] 1 Qd R 333; [1996] QCA 232, considered
R v Trieu [2008] QCA 28, considered

COUNSEL:

J M McInnes for the appellant
B J Power for the respondent

SOLICITORS:

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

HOLMES JA: The appellant was convicted of manslaughter. He had punched another young man, causing his death. The defence case was that the blow was struck in self-defence or in aiding in the defence of another; or alternatively, that the death was an accident. The appellant appeals his conviction on…

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 Hung

Details

AGLC: R v Hung [2012] QCA 341
Case: [2012] QCA 341
Decision Date: 7 December 2012

CaseChat Overview and Summary

The case of R v Hung involved an appeal by the appellant against his conviction for manslaughter. The appellant had punched the deceased, resulting in his death, and was convicted based on this act. The appellant contested the conviction, arguing that the trial judge misdirected the jury on the issue of self-defence against an unprovoked assault, as outlined in section 271(1) of the Criminal Code. The court was required to determine whether the trial judge’s explanations of what constituted a substantial likelihood and the equating of "likely" in section 271(1) with "possible outcome" in section 23 amounted to misdirections, and if these misdirections led to a miscarriage of justice.

The court examined whether the trial judge's explanation of the term "likely" in section 271(1) of the Criminal Code, as being a substantial likelihood, which might be less than a 50/50 chance but had to be more than a remote or speculative possibility, was accurate and whether it amounted to misdirection. The court also considered whether the trial judge's direction on the "possible outcome" in the context of accident in section 23, which was given in almost identical terms, was appropriate. The court concluded that both explanations could be seen as misdirections, as they did not correctly interpret the statutory terms and potentially misled the jury.

Given the misdirections identified, the court found that these errors amounted to a miscarriage of justice. Consequently, the appeal was allowed, the conviction and verdict were set aside, and a re-trial was ordered. The court's decision to order a re-trial was based on the significant impact of the misdirections on the jury's understanding of the self-defence claim, which was pivotal to the appellant's defence.

Orders

Orders of the court

1. Appeal against conviction allowed.

2. Conviction and verdict set aside.

3. A re-trial is ordered.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Hung [2012] QCA 341
PARTIES:	R v HUNG, Wally James (appellant)
FILE NO/S:	CA No 111 of 2012 SC No 158 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	7 December 2012
DELIVERED AT:	Brisbane
HEARING DATE:	7 November 2012
JUDGES:	Holmes and Muir JJA and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal against conviction allowed. 2. Conviction and verdict set aside. 3. A re-trial is ordered.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where the appellant was convicted on one count of manslaughter – where the appellant had punched the deceased, causing his death – where the evidence about the extent of force of the punch was mixed – where the appellant argued that the trial judge misdirected the jury in relation to self-defence against unprovoked assault in s 271(1) of the Criminal Code – where the trial judge referred to the word “likely” in the context of “likely to cause death or grievous bodily harm” in s 271(1) as being a substantial likelihood, which might be less than 50/50 but had to be more than a remote or speculative possibility – where the trial judge directed on likelihood of death or grievous bodily harm and “possible outcome” in the context of accident in s 23 in almost identical terms – whether explaining what amounted to a substantial likelihood by distinguishing it from a remote or speculative possibility was a misdirection – whether equating “likely” in s 271(1) with “possible outcome” relating to accident in s 23 was a misdirection – whether a miscarriage of justice resulted Criminal Code 1899 (Qld), s 1, s 8, s 23, s 271(1), s 271(2) Criminal Code and other Legislation Amendment Act 2011 (Qld), s 4 Criminal Code 1924 (Tas), s 156(2), s 157(1) Boughey v The Queen (1986) 161 CLR 10; [1986] HCA 29, considered Darkan v The Queen (2006) 227 CLR 373; [2006] HCA 34, considered R v Crossman [2011] 2 Qd R 435; [2011] QCA 126, considered R v Hind and Harwood (1995) 80 A Crim R 105; [1995] QCA 202, cited R v Taiters; ex parte Attorney-General (Qld) [1997] 1 Qd R 333; [1996] QCA 232, considered R v Trieu [2008] QCA 28, considered
COUNSEL:	J M McInnes for the appellant B J Power for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent