R v Kelleher

Case [2024] QCA 99

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kelleher [2024] QCA 99

PARTIES:

R
v
KELLEHER, Tyler Joseph
(appellant)

FILE NO/S:

CA No 276 of 2022
SC No 609 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 25 November 2022 (Cooper J)

DELIVERED ON:

31 May 2024

DELIVERED AT:

Brisbane

HEARING DATE:

23 November 2023

JUDGES:

Morrison and Bond JJA and Crow J

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – GENERAL PRINCIPLES – where the appellant was tried for murder and convicted – where the sole issue at trial was whether the appellant had intended to cause death or grievous bodily harm to his victim – where with counsel’s agreement the trial judge directed the jury that, as a matter of law, the evidence did not raise any defences for their consideration – whether the trial judge erred by not leaving to the jury defences under ss 267 (defence of dwelling), 271 (self-defence against unprovoked assault) and 273 (aiding in self-defence) of the Criminal Code

Criminal Code (Qld), s 24, s 245, s 267, s 271, s 273

Colosimo v Director of Public Prosecutions [2006] NSWCA 293, cited
R v Clarke (1995) 78 A Crim R 226, considered
R v Hogarty[2001] QCA 558, followed
R v Lawrie [1986] 2 Qd R 502; [1986] QSCCCA 98, distinguished
R v Markovski[2023] QCA 52, considered
R v Robertson[2023] QCA 47, cited
Taiapa v The Queen (2009) 240 CLR 95; [2009] HCA 53, cited

COUNSEL:

P J Wilson and J E Marxson for the appellant (pro bono)
G J Cummings for the respondent

SOLICITORS:

Bell Criminal Lawyers for the appellant (pro bono)
Director of Public Prosecutions (Queensland) for the respondent

  1. MORRISON JA:  I agree with Bond JA.

  2. BOND JA:  On 9 March 2019, the appellant stabbed Joel Peter Frew in the abdomen with a knife which had a 15cm blade.  Mr Frew died in hospital a short time later.  The stabbing was captured on CCTV.

  3. At the appellant’s trial for the offence of murder, the only real question was whether, at the time the appellant stabbed Mr Frew, the appellant intended to cause Mr Frew’s death or to cause him grievous bodily harm.  The jury convicted the appellant of murder, so it may be assumed that they answered that question in the affirmative.

  4. The appellant now appeals against his conviction. The sole ground which he advances is that the trial judge erred by not directing the jury that defences pursuant to ss 267 (defence of a dwelling), 271 (self-defence against an unprovoked assault), and 273 (aiding in self-defence) of the Criminal Code 1899 were open on the evidence.

  5. The trial judge had not overlooked the question whether any defences should be left to the jury.  Indeed, his Honour raised that question with counsel after…

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Details
AGLC
R v Kelleher [2024] QCA 99
Case
[2024] QCA 99
Decision Date

CaseChat Overview and Summary

In the case of R v Kelleher, the appellant was convicted of murder following a trial in the Supreme Court of Queensland. The central issue at the trial was whether the appellant intended to cause death or grievous bodily harm to the victim, Mr Frew. The appellant appealed against his conviction, arguing that the trial judge had erred by not leaving certain defences to the jury’s consideration. Specifically, the appellant contended that the trial judge should have directed the jury on the defences under sections 267 (defence of dwelling), 271 (self-defence against unprovoked assault), and 273 (aiding in self-defence) of the Criminal Code. The Court of Appeal was required to determine whether the trial judge’s direction to the jury was correct and whether the appellant’s appeal should be upheld.

The Court of Appeal considered the evidence presented at the trial, which included video footage from a CCTV camera and witness testimonies. The video depicted Mr Frew approaching the appellant’s unit, and the subsequent events leading to the stabbing. The appellant argued that the trial judge should have left the defences to the jury’s consideration, but the Court found that the trial judge’s direction was appropriate. The Court held that the evidence did not support the application of the defences in question, particularly the defence under section 273. The appellant’s actions and the context in which they occurred did not align with the criteria for invoking the defence of aiding in self-defence. The Court further noted that the trial judge’s direction, with the agreement of counsel, was consistent with the applicable legal principles.

The Court of Appeal concluded that the trial judge did not err in not directing the jury on the possible application of the defences under sections 267, 271, and 273. The evidence did not warrant the consideration of these defences, and the trial judge’s direction was in accordance with the law. Therefore, the appeal was dismissed, and the conviction was upheld.

ORDERS:
The appeal is dismissed.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

A little after Ms Barton left, Mr Frew turned up at the unit. The Crown adduced evidence of what then transpired in the form of video evidence from the CCTV camera and evidence from Ms Maizey and Mr Powell. The appellant gave evidence on his own behalf. It is appropriate to examine each aspect of that evidence in a little detail.The video evidence Exhibit 2 at the trial was a 2:54 minute video taken on the evening of 9 March 2019 showing Mr Frew’s arrival and what then transpired. There was no audio captured. The video was played to the jury and was also reviewed by this Court. It relevantly depicted the following. Mr Frew walked slowly down the pathway towards the front door of the unit. He was alone. He was dressed in shorts and a t-shirt and wearing sandals. He had nothing in his open hands. He moved to a front window[9] which was a metre or two to the front and right of the front door of the unit as he faced it. The front door and another window to the left of the front door as he faced it appeared to be protected by security grills. A curtain appeared to be hung on the inside of the window.[9]From Ms Maizey’s evidence one can infer that that window was the window to the kitchen. He appeared to knock on the window. He then bent over slightly as though he was attempting to see through a gap in the curtain, speaking through the window, or trying to attract someone’s attention. He made no attempt to open the window. He did not bang on the window or test it for weakness. He did not appear to be aggressive or angry. Mr Frew moved a metre or so to his left so that he was standing facing the front door. He appeared to be only slightly further away from the front door than was the front window. He stood with his hands on his hips facing the front door and with his head slightly bowed. He exhibited no apparent signs of aggression. He took a half step towards the front window, lent to his right, and appeared to look through the window. He then resumed his previous position in front of the front door. He remained in that position until the appellant stabbed him. About 59 seconds after Mr Frew first walked into frame, the front door opened, and three people came out. Mr Powell moved forward and stood in front of and facing Mr Frew. Ms Maizey came out and stood still near the door then moved slightly forward so she stood behind Mr Powell and to Mr Powell’s right. The appellant came into view initially in the doorway but then moved a little forward but remained close to the front door and behind the other two. Mr Powell engaged in conversation with Mr Frew. The appellant was behind Mr Powell and a little to his right. Ms Maizey was in front of him and closer to Mr Powell, but still to Mr Powell’s right. The appellant could be seen shifting his weight from one foot to the other while Mr Powell continued to talk to Mr Frew. Mr Frew stayed in the same position with his hands on his hips. He did not make any movement towards the unit. No one exhibited any apparent signs of aggression.

Decision

Reasons for decision

The trial judge did not err by not directing the jury about the possible application of a defence pursuant to s 273.Conclusion The appeal should be dismissed. CROW J: I agree with Bond JA.

Ratio Decidendi

Legal Principle Established

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