R v Koko - [2022] QCA 216

SUPREME COURT OF QUEENSLAND

CITATION:

R v Koko [2022] QCA 216

PARTIES:

R
v
KOKO, Soan Adrian
(appellant)

FILE NO/S:

CA No 193 of 2020
SC No 42 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Cairns – Date of Conviction: 17 September 2020 (Henry J)

DELIVERED ON:

4 November 2022

DELIVERED AT:

Brisbane

HEARING DATE:

13 October 2022

JUDGES:

Mullins P, Dalton and Flanagan JJA

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – CONSIDERATION OF SUMMING UP AS A WHOLE – where the appellant was on trial for murder – where the appellant pleaded guilty to manslaughter – where the only issue at trial was the intention of the appellant – where the appellant beat the deceased to death on potentially four separate incidents of violence – where the violence and circumstances in totality caused death rather than an individual blow – where the judge’s direction concerned cause of death – where the judge’s direction concerned intent in circumstances where there were multiple acts of violence – where the trial judge directed the jury that if they could not be unanimous as to which of the defendant’s acts of violence actually contributed substantially to death, then they had to at least be unanimous as to which of those acts may have contributed substantially to death – where the trial judge directed the jury that, once they identified which acts may have contributed to death, they needed to be satisfied that when the accused committed those acts he committed all of them intending to kill or do grievous bodily harm – whether the trial judge failed to direct the jury that they had to be unanimous as to which act or acts of violence the appellant committed against the deceased – whether the trial judge wrongly directed the jury that, if they could not be unanimous as to which of the appellant’s acts caused the deceased’s death, then they must be unanimous as to which of those acts may have caused the deceased’s death

Criminal Code (Qld), s 302, s 303

Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (2020) 275 FCR 342; [2020] FCAFC 30, considered
Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28, cited
Magnus v R (2013) 41 VR 612; [2013] VSCA 163, cited
Pratten v R [2014] NSWCCA 117, cited
R v Cramp (1999) 110 A Crim R 198; [1999] NSWCCA 324, cited
R v Walsh (2002) 131 A Crim R 299; [2002] VSCA 98, cited

COUNSEL:

S C Holt KC for the appellant
C W Heaton KC for the respondent

SOLICITORS:

Alexander Law for the appellant
Director of Public Prosecutions (Queensland) for the respondent

MULLINS P: I agree with Flanagan JA.
DALTON JA: I agree with the order proposed by Flanagan JA and his reasons.
FLANAGAN JA: After a four…

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 Koko

Details

AGLC: R v Koko [2022] QCA 216
Case: [2022] QCA 216
Decision Date: 4 November 2022

CaseChat Overview and Summary

In the case of R v Koko, the appellant was on trial for murder but ultimately pleaded guilty to manslaughter. The central issue in the trial was the appellant’s intent. The deceased was fatally beaten, and the appellant was accused of causing the death through potentially four separate incidents of violence. The jury needed to determine whether the appellant intended to kill or cause grievous bodily harm at the time of the attacks. The trial judge directed the jury that if they could not unanimously decide which specific act of violence caused the death, they should at least be unanimous about which act may have caused it. Furthermore, the judge indicated that once the jury identified which acts may have contributed to the death, they needed to be satisfied that the appellant intended to kill or do grievous bodily harm at the time of those acts. The appellant argued on appeal that the trial judge erred in not directing the jury to be unanimous about the specific acts of violence committed and in allowing a non-unanimous decision on which act may have caused the death.

The court examined whether the trial judge failed to direct the jury that they had to be unanimous about the specific acts of violence committed by the appellant and whether the trial judge incorrectly allowed a non-unanimous decision on which acts may have caused the death. The trial judge discussed the issue of unanimity with counsel, considering scenarios where jurors might have different views on which incidents led to the death. Defence counsel argued that the jury needed to be unanimous about the presence of intent at the time of the relevant acts. However, the trial judge concluded that the jury needed to be unanimous about the presence of the intent at the time of any relevant acts they considered to be a substantial cause of death. The court noted that while the defence counsel did not seek a re-direction, it was not relieved from determining whether a miscarriage of justice occurred.

The court concluded that the trial judge did not err in his directions to the jury. The judge’s direction on unanimity was sufficient for the jury to determine the appellant’s intent and whether the acts were a substantial cause of death. The court held that the trial judge’s direction allowed the jury to consider the totality of the acts and their potential causative role in the death, which aligned with the principles of unanimity required in criminal trials. The court dismissed the appeal, finding no miscarriage of justice in the trial judge’s directions to the jury.

Orders

Orders of the court

Appeal dismissed.

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

Prior to giving the direction, his Honour discussed the issue of unanimity with counsel in the following terms:“HIS HONOUR: Do I have to tell them anything beyond that about unanimity? Whether they’ve got to find one – whether or not they’ve got to find the same set of actions happened before acting on it? I’m just contemplating this theoretical possibility: the jury might convict him on the basis that six jurors thought the episode outside Jack Pitt’s solely caused death, another three might convict him because they think it’s the – at their house, and they were locked out and the admissions he made to the nurse about that, and another three might think it’s a mixture of both those episodes. I don’t think this is necessary but I’m raising it: do they need to be unanimous about which episodes they’re returning a verdict on?”The following exchange occurred between his Honour and defence counsel:“MR TREVINO: In my submission, they need to be unanimous about the incidents because the intention – they have to be satisfied the intention was held from whenever the altercations that they find began to whenever it ended. So - - - HIS HONOUR: They need to be unanimous as to the presence of the intention at the time of the commission of any of the relevant acts that they consider were a substantial cause of death. Therefore, they need to be unanimous as to which of the acts that were a substantial cause of death.”Defence counsel did not seek any re-direction in relation to the impugned direction. The fact that no re-direction was sought does not relieve this Court from determining whether a miscarriage of justice occurred.Consideration The ground of appeal has two components which the parties addressed separately while acknowledging that there is some overlap. The first is that the trial judge failed to direct the jury that they had to be unanimous as to which act or acts of violence the appellant committed against the deceased (“the first alleged error”). The second is that the trial judge misdirected the jury that, if they could not be unanimous as to which of the appellants acts caused the deceased’s death, then they must be unanimous as to which of those acts may have caused the deceased’s death (“the second alleged error”).(a)The first alleged error The appellant submits that the jury should have been directed that they had to be unanimous as to the actual conduct which the accused engaged in “because everything else flowed from that”. That is, once the jury were unanimous as to what acts of violence the appellant inflicted on the deceased, they were then able to consider whether those acts were causative of death and what intention the appellant had at the time those acts were committed. Mr Holt KC, who appeared for the appellant, acknowledged that but for the failure to give this direction, the alleged misdirection “would not have caused any practical injustice, indeed was probably a sensible way through”. This acknowledgement recognises that the forensic pathologist, Dr Botterill, could not identify any one particular injury as causative of death.

CITATION:	R v Koko [2022] QCA 216
PARTIES:	R v KOKO, Soan Adrian (appellant)
FILE NO/S:	CA No 193 of 2020 SC No 42 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Cairns – Date of Conviction: 17 September 2020 (Henry J)
DELIVERED ON:	4 November 2022
DELIVERED AT:	Brisbane
HEARING DATE:	13 October 2022
JUDGES:	Mullins P, Dalton and Flanagan JJA
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – CONSIDERATION OF SUMMING UP AS A WHOLE – where the appellant was on trial for murder – where the appellant pleaded guilty to manslaughter – where the only issue at trial was the intention of the appellant – where the appellant beat the deceased to death on potentially four separate incidents of violence – where the violence and circumstances in totality caused death rather than an individual blow – where the judge’s direction concerned cause of death – where the judge’s direction concerned intent in circumstances where there were multiple acts of violence – where the trial judge directed the jury that if they could not be unanimous as to which of the defendant’s acts of violence actually contributed substantially to death, then they had to at least be unanimous as to which of those acts may have contributed substantially to death – where the trial judge directed the jury that, once they identified which acts may have contributed to death, they needed to be satisfied that when the accused committed those acts he committed all of them intending to kill or do grievous bodily harm – whether the trial judge failed to direct the jury that they had to be unanimous as to which act or acts of violence the appellant committed against the deceased – whether the trial judge wrongly directed the jury that, if they could not be unanimous as to which of the appellant’s acts caused the deceased’s death, then they must be unanimous as to which of those acts may have caused the deceased’s death Criminal Code (Qld), s 302, s 303 Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (2020) 275 FCR 342; [2020] FCAFC 30, considered Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28, cited Magnus v R (2013) 41 VR 612; [2013] VSCA 163, cited Pratten v R [2014] NSWCCA 117, cited R v Cramp (1999) 110 A Crim R 198; [1999] NSWCCA 324, cited R v Walsh (2002) 131 A Crim R 299; [2002] VSCA 98, cited
COUNSEL:	S C Holt KC for the appellant C W Heaton KC for the respondent
SOLICITORS:	Alexander Law for the appellant Director of Public Prosecutions (Queensland) for the respondent