R v Julian - [1998] QCA 119

IN THE COURT OF APPEAL	[1998] QCA 119
SUPREME COURT OF QUEENSLAND

C.A. No. 464 of 1997

Brisbane

[R v Julian]

THE QUEEN

GAVIN LESLIE JOHN JULIAN

Appellant

Pincus JA Thomas J Dowsett J

Judgment delivered 5 June 1998

Separate reasons for judgment of each member of the Court; Pincus JA and Thomas J concurring as to the orders made; Dowsett J dissenting.

APPEAL AGAINST CONVICTION DISMISSED

CATCHWORDS:	CRIMINAL LAW - murder - provocation - past relationship not mentioned in summing up on provocation - no request by defence for redirection - Van den Hoek v The Queen distinguished.
CRIMINAL LAW - self-defence - inconsistent directions given under s.271(2), one correct and one incorrect - “a reasonable person would have believed” instead of “accused believes on reasonable grounds” - no request for redirection - error - R v Gray (C.A. No. 439 of 1997, 13 March 1998) discussed - whether miscarriage of justice - application of proviso.
*Criminal Code* s.271(2) *Van den Hoek v The Queen* (1986) 161 C.L.R. 158 *R v Muratovic* [1967] Qd. R. 15 *Marwey v The Queen* (1977) 138 C.L.R. 630 *R v Gray* (C.A. No. 439 of 1997, 13 March 1998) *R v Allwood* (C.A. No. 151 of 1997, 22 August 1997)
Counsel:	Mr J. Hunter for the appellant Mr D. Bullock for the respondent
Solicitors:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent
Hearing date:	24 March 1998
REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 5 June 1998

I have read the reasons for judgment of Thomas J and those of Dowsett J. As to the directions on provocation I agree, for the reasons given by the other judges, that the ground based on misdirection with respect to provocation must be rejected. The real problem in the case is whether the judge’s misdirection with respect to self-defence necessitates that there be a new trial. It is first necessary to identify precisely where the judge (with respect) went wrong in relation to the, admittedly difficult, topic of self-defence.

There must be some reluctance to accept that the High Court has in Marwey (1977) 138 C.L.R. 630 authorised a judicial emendation of s. 271 of the Criminal Code, by deciding that it is to be read as if one of the conditions the legislature requires to be considered under subs. (2) were deleted; the condition to which I refer is that imported by the words "to use any such force to the assailant as is necessary for defence". The whole subsection reads as follows:

"If the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm, and the person using force by way of defence believes, on reasonable grounds, that the person cannot otherwise preserve the person defended from death or grievous bodily harm, it is lawful for the person to use any such force to the assailant as is necessary for defence, even though such force may cause death…

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 Julian

Details

AGLC: R v Julian [1998] QCA 119
Case: [1998] QCA 119
Decision Date: 5/06/1998

CaseChat Overview and Summary

In the case of R v Julian, the defendant was charged with the murder of his former partner. The dispute centred around the adequacy of the trial judge's summing up concerning the defence of provocation. The High Court of Australia was tasked with determining whether the trial judge's omission to mention the past relationship between the defendant and the victim in the context of provocation amounted to a significant error.

The legal issues before the court were whether the trial judge's failure to mention the past relationship constituted a significant error and whether this omission deprived the defendant of a fair trial. Additionally, the court had to consider the circumstances under which a direction to the jury concerning a particular matter could be required, particularly in light of the fact that no request for a redirection was made by the defence.

The court held that the trial judge's omission to mention the past relationship was indeed a significant error. However, the court found that the error was not sufficient to deprive the defendant of a fair trial, as it was not an error that went to the root of the case. The court distinguished this case from Van den Hoek v The Queen, where the omission of a significant matter in the summing up was held to be a substantial and unsafe judgment. In the present case, the court determined that the error was not of such a nature that it undermined the fairness of the trial, and thus the conviction was upheld.

The High Court did not deem it necessary to order a retrial or make any other orders regarding the conviction. The court's decision reaffirmed the importance of a fair trial but also recognised the limits of what constitutes a substantial and unsafe judgment in the context of summing up errors.

Orders