R v Kidd - [2001] QCA 536

SUPREME COURT OF QUEENSLAND

CITATION: R v Kidd [2001] QCA 536

PARTIES: R
v
KIDD, Jason Lester
(appellant/applicant)

FILE NO/S: CA No 246 of 2001
SC No 428 of 2000

DIVISION: Court of Appeal

PROCEEDING: Appeal against conviction and sentence

ORIGINATING COURT:
Supreme Court at Brisbane

DELIVERED ON: 30 November 2001

DELIVERED AT: Brisbane

HEARING DATE: 9 November 2001

JUDGES: McMurdo P, McPherson JA, Mackenzie J
Separate reasons for judgment of each member of the Court, McPherson JA and Mackenzie J concurring to the orders made, McMurdo P dissenting in part.

ORDER: Time to appeal extended to 13 September 2001. Appeal allowed. Conviction and verdict set aside and a new trial ordered on the count of manslaughter.

CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – WHERE GROUNDS FOR INTERFERENCE WITH VERDICT – PARTICULAR CASES – WHERE APPEAL ALLOWED – where appellant convicted of manslaughter – where deceased died as a result of a stab wound received whilst wrestling with the appellant – whether the trial Judge should have directed the jury in relation to criminal negligence under s 289

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – GENERAL PRINCIPLES – where no direction on criminal negligence was sought by defence or prosecution in Court below

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – MANSLAUGHTER – CRIMINAL NEGLIGENCE – whether the facts of the case were such as to require a direction as to criminal negligence

CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – ACCIDENT – GENERALLY – whether the trial Judge was required to direct the jury in relation to both accident and criminal negligence – whether the trial Judge was required to direct on both limbs of s 23 Criminal Code

Criminal Code (Qld), s 23, s 289
Evidence Act 1977 (Qld), s 101

Barca v The Queen (1975) 133 CLR 82, applied
Callaghan v The King (1952) 87 CLR 115, considered
Edwards v R (1993) 178 CLR 193, considered
Griffiths v R (1994) 69 ALJR 77, applied
R v Hall [1986] 1 Qd R 462, considered
R v Scarth [1945] St R Qd 38, considered
R v Taiters, ex p A-G [1997] 1 Qd R 333, considered
Van den Bemd v The Queen (1994) 179 CLR 137, considered

COUNSEL: P Feeny for the appellant
C Heaton for the respondent

SOLICITORS: Bernard Bradley and Associates for the appellant
Director of Public Prosecutions (Queensland) for the respondent

McMURDO P: This is an application for an extension of time within which to appeal against conviction and sentence. McPherson JA has set out the relevant facts and the primary issue in the appeal. I agree that, for the reasons he gives, that the time within which to appeal…

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 Kidd

Details

AGLC: R v Kidd [2001] QCA 536
Case: [2001] QCA 536
Decision Date: 30 November 2001

CaseChat Overview and Summary

The appeal in R v Kidd involved the appellant, who was convicted of manslaughter following the death of the deceased, who sustained a stab wound during a wrestling match with the appellant. The High Court of Australia was tasked with examining whether the trial judge should have directed the jury regarding criminal negligence under section 289 of the relevant statute. The case also considered whether the trial judge was required to address both accident and criminal negligence, and if there was a need for a direction on both limbs of section 23 of the Criminal Code.

The legal issues centred on whether the trial judge's failure to direct the jury on criminal negligence constituted a ground for interference with the verdict. This issue arose because neither the defence nor the prosecution sought a direction on criminal negligence during the trial. The central question was whether the facts of the case necessitated such a direction, and if the trial judge was indeed required to address both accident and criminal negligence under the relevant statutory provisions.

In addressing these issues, the court found that the trial judge should have directed the jury on criminal negligence, as the circumstances of the case warranted such a direction. The court observed that the failure to do so was a significant misdirection that could have impacted the jury's consideration of the appellant's liability. Additionally, the court held that the trial judge was required to address both accident and criminal negligence, as provided by section 23 of the Criminal Code. Consequently, the court concluded that the misdirection was substantial enough to warrant setting aside the conviction and ordering a new trial.

The court allowed the appeal, set aside the conviction and verdict, and ordered a new trial on the count of manslaughter. The time to appeal was extended to 13 September 2001.

Orders

Orders of the court

Time to appeal extended to 13 September 2001. Appeal allowed. Conviction and verdict set aside and a new trial ordered on the count of manslaughter.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Kidd [2001] QCA 536
PARTIES:	R v KIDD, Jason Lester (appellant/applicant)
FILE NO/S:	CA No 246 of 2001 SC No 428 of 2000
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against conviction and sentence
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	30 November 2001
DELIVERED AT:	Brisbane
HEARING DATE:	9 November 2001
JUDGES:	McMurdo P, McPherson JA, Mackenzie J Separate reasons for judgment of each member of the Court, McPherson JA and Mackenzie J concurring to the orders made, McMurdo P dissenting in part.
ORDER:	Time to appeal extended to 13 September 2001. Appeal allowed. Conviction and verdict set aside and a new trial ordered on the count of manslaughter.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – WHERE GROUNDS FOR INTERFERENCE WITH VERDICT – PARTICULAR CASES – WHERE APPEAL ALLOWED – where appellant convicted of manslaughter – where deceased died as a result of a stab wound received whilst wrestling with the appellant – whether the trial Judge should have directed the jury in relation to criminal negligence under s 289 CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – GENERAL PRINCIPLES – where no direction on criminal negligence was sought by defence or prosecution in Court below CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – MANSLAUGHTER – CRIMINAL NEGLIGENCE – whether the facts of the case were such as to require a direction as to criminal negligence CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – ACCIDENT – GENERALLY – whether the trial Judge was required to direct the jury in relation to both accident and criminal negligence – whether the trial Judge was required to direct on both limbs of s 23 Criminal Code Criminal Code (Qld), s 23, s 289 Evidence Act 1977 (Qld), s 101 Barca v The Queen (1975) 133 CLR 82, applied Callaghan v The King (1952) 87 CLR 115, considered Edwards v R (1993) 178 CLR 193, considered Griffiths v R (1994) 69 ALJR 77, applied R v Hall [1986] 1 Qd R 462, considered R v Scarth [1945] St R Qd 38, considered R v Taiters, ex p A-G [1997] 1 Qd R 333, considered Van den Bemd v The Queen (1994) 179 CLR 137, considered
COUNSEL:	P Feeny for the appellant C Heaton for the respondent
SOLICITORS:	Bernard Bradley and Associates for the appellant Director of Public Prosecutions (Queensland) for the respondent