R v Kuhn

Case [2022] QCA 247

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kuhn [2022] QCA 247

PARTIES:

R
v
KUHN, Aaron Frederick Harold Alan
(appellant/applicant)

FILE NO/S:

CA No 1 of 2022
DC No 173 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Rockhampton – Date of Conviction and Sentence: 7 December 2021 (Smith DCJA)

DELIVERED ON:

6 December 2022

DELIVERED AT:

Brisbane

HEARING DATE:

14 November 2022

JUDGES:

Morrison and Flanagan JJA and Applegarth J

ORDERS:

1.   Appeal dismissed.

2.   Application for leave to appeal against sentence dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL DISMISSED – where the appellant was convicted of the offence of malicious act with intent – where the jury was directed that to find the appellant guilty, the prosecution had to prove beyond reasonable doubt that the appellant intended to cause grievous bodily harm – where the jury was also directed that guilt should not only be a rational inference, but the only rational inference that can be drawn from the circumstances – where the jury was also directed that any reasonable possibility consistent with innocence required them to find the appellant not guilty – where the evidence and defence counsel at trial did not suggest the possibility that the appellant either intended to inflict some lesser harm than grievous bodily harm or had no intent to harm – whether the jury should have been additionally directed that to find the appellant guilty, the jury had to exclude “lesser alternative intents” beyond reasonable doubt – whether the trial judge’s directions to the jury on the issue of intent were adequate in the circumstances

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted of the offence of malicious act with intent – where the applicant was sentenced to a period of seven and a half years’ imprisonment – where the trial judge exercised his discretion to make a serious violent offence (“SVO”) declaration – where the trial judge’s sentencing remarks referred to the applicant engaging in a weaponised attack in company, the attack continuing after the complainant broke free, there being no element of self-defence, the complainant being “prone and unable to defend himself”, the offence having a significant and enduring effect on the complainant and his family, and the offending being unable to be described “as an excessive response to a provoked assault” – where the trial judge’s sentencing remarks referred to the complainant having made threats against the applicant and the offending being of short duration – whether the trial judge erred in making an SVO declaration – whether making an SVO declaration rendered the sentence manifestly excessive

Criminal Code (Qld), s 620

Alford v Magee (1952) 85 CLR 437; [1952] HCA 3, cited
Castle v The Queen (2016) 259 CLR 449;

Continue reading R v Kuhn

Sign in free to access the full text

Details
AGLC
R v Kuhn [2022] QCA 247
Case
[2022] QCA 247
Decision Date

CaseChat Overview and Summary

The appeal in R v Kuhn was brought by the appellant, who was convicted of the offence of a malicious act with intent, against the decision of the trial judge. The appellant challenged the adequacy of the jury directions given by the trial judge in relation to the issue of intent. The appellant also sought leave to appeal against the sentence of imprisonment for a period of seven and a half years, with a serious violent offence declaration. The appeal was heard by the court, which was required to determine whether the trial judge's directions to the jury on the issue of intent were adequate and whether the sentence imposed was manifestly excessive or inadequate.

The court considered the issue of whether the trial judge should have directed the jury that to find the appellant guilty, they had to exclude "lesser alternative intents" beyond reasonable doubt. The court held that the trial judge's directions on intent were adequate in the circumstances, as the circumstances of the case did not suggest any lesser alternative intent. The court also considered whether the trial judge erred in making an SVO declaration and whether the declaration rendered the sentence manifestly excessive. The court found that the trial judge did not err in making the SVO declaration and that the sentence was not manifestly excessive.

The court dismissed the appeal and the application for leave to appeal against the sentence. The trial judge's directions on intent were adequate, and the sentence imposed was not manifestly excessive. The court held that the appellant's appeal and application for leave to appeal against sentence were dismissed.

Orders

Orders of the court

1. Appeal dismissed.

2. Application for leave to appeal against sentence dismissed.

Background

Background to the litigation

The forensic choice of defence counsel to concentrate on self-defence rather than intent is understandable. His client’s use of a baseball bat in a prolonged bashing in which the complainant sustained a fractured skull made it hard for defence counsel to nominate some lesser intent. If the additional suggested direction had been given by the trial judge, the jury would have struggled to identify a “lesser alternative intent” in circumstances in which none had been suggested. None had been suggested because, in the circumstances of the case, little, if anything, could be said by defence counsel on that point.Facts Given that the single ground of appeal against conviction relates to an alleged failure to give an additional direction, a detailed account of the evidence of each witness is not required. The complainant and his partner, Laine Kennedy, lived in a small town in Central Queensland, as did the appellant and his son. On 5 May 2020, the complainant and Ms Kennedy went to a location at the Styx River. While they were talking, the appellant and his son drove past. They then turned around and returned to where the appellant was. There was a verbal exchange about whether the complainant “had a problem” to which he replied “no”. The appellant got out of his vehicle, punched the complainant in the head and threatened to kill him. Ms Kennedy separated the two. The complainant and Ms Kennedy returned to their home in the town. She went inside their house. The complainant collected a baseball bat and drove on his motorbike to a nearby house where the appellant, his son and a woman were present. He probably said some threatening things and then returned to his home. He and Ms Kennedy were planning to walk to her father’s nearby house. The appellant and his son drove down their street in a different vehicle to the one they had been in at the river. It left the road and caused the complainant to jump out of its way as it swerved in his direction. The vehicle came to a stop. The appellant was driving and his son was in the passenger seat. The complainant ran to the driver’s door with the metal baseball bat in his hand. He said he intended to stop the appellant getting out of his car. He swung the bat and struck the car. The appellant’s son, who was charged with aiding the offence committed by his father, got out of the vehicle, grabbed a chain and struck the complainant to the legs or back. After the complainant was hit by the chain, he dropped the bat. He tried to get away and fell over. He then was (in his words) “beat down”. He recalled being hit “everywhere” with the bat and the chain. Because he was face down on the ground he could not see the people who were beating him. After the two men left, he noticed that his head was “smashed in” and he had injuries to his ribs and legs. Ms Kennedy saw most of the incident. She was at the top of the stairs and saw “the younger man” from down at the creek get out of the passenger side with a chain and hit the complainant across the back several times. She came down the stairs and saw everything that happened on the driver’s side. She saw “the older man” hitting the complainant with the baseball bat and “the younger man” hitting him with the chain. She said she saw the older man hitting the complainant in the head with the bat. The younger man was using the chain on the complainant’s back and body. The complainant broke free and she told him to run. He did so but lost his footing and the men ran after him. They got the complainant “back down on the ground”. The younger one continued to hit the complainant’s legs with the chain and “the other guy” was “just bashing” the complainant’s head and body.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The trial judge’s duty did not require him, in giving instructions to the jury on intent, to complicate the summing-up and potentially confuse the jury by referring to an intent to defend. A person may engage in conduct having more than one object or purpose.[21] This does not mean that a jury, in a case like this, should be asked to consider whether the appellant lacked the requisite intent at the relevant time because he was acting in self-defence. To do so risked confusing the appellant’s possible reason for getting out of the car with his intent in striking the complainant in the head and thereby inflicting grievous bodily harm. It risked confusing motivation with an intent to cause a specific result at the time of the act that caused grievous bodily harm.[21]Zaburoni v The Queen (2016) 256 CLR 482 at 491 [19].Conclusion The duty to instruct the jury on the issue of intent in the circumstances of this case did not require the trial judge to direct the jury about “lesser alternative intents”. The circumstances of the case include the fact that such a lesser alternative intent was not raised as a reasonable hypothesis by the appellant’s counsel, was not raised by the appellant when he spoke to police and was not a hypothesis that derived any real support from the evidence as a whole. The trial judge’s directions on intent were adequate in the circumstances to instruct the jury that if there were any reasonable hypothesis consistent with innocence, including the presence of a lesser intent than the specific intent that the prosecution had to prove beyond a reasonable doubt, then it was the jury’s duty to find the appellant not guilty. The directions on intent were adequate and, in the circumstances of this case, the trial judge was not required to specifically direct the jury that before the appellant could be convicted of malicious act with intent, they must exclude “lesser alternative intents” beyond reasonable doubt. Any reference to “lesser alternative intents” would have begged the question of what they were in the absence of any such intent being suggested by the appellant or his trial counsel. Any suggestion that the appellant did not have the requisite intent because he intended to act in self-defence would have been confusing to the jury. A motivation to act in self-defence in response to an alleged unprovoked assault was consistent with the appellant having the intent that the jury found him to have. Reference to an alternative intent to act in self-defence would have confused, not clarified, the issue of intent for the jury. I would dismiss the appeal.Application for leave to appeal against sentence The appellant seeks leave to appeal against the sentence of imprisonment for a period of seven and a half years with a serious violent offence (“SVO”) declaration, on the ground that the trial judge erred in making the SVO declaration. Alternatively, he contends that the declaration rendered the sentence manifestly excessive.Facts

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.