R v Lefoe

Case [2024] QCA 240

SUPREME COURT OF QUEENSLAND

CITATION:

R v Lefoe [2024] QCA 240

PARTIES:

R
v
LEFOE, Ricky Kevin
(appellant)

FILE NO/S:

CA No 33 of 2023
SC No 17 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 8 February 2023 (Bowskill CJ)

DELIVERED ON:

26 November 2024

DELIVERED AT:

Brisbane

HEARING DATE:

10 July 2024

JUDGES:

Mullins P and Kelly and Crowley JJ

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF PROSECUTOR OR PROSECUTION – where the appellant was charged and convicted by a jury of manslaughter – where the appellant contends the prosecutor materially misstated the facts and left a case for murder to the jury – where the appellant gave evidence – where the appellant did not give direct evidence that he thought that Mr Simpson might be killed or suffer grievous bodily harm – where the prosecutor told the jury that the appellant did not give evidence that, when he threw his punch, he thought the deceased was going to kill or do grievous bodily harm to Mr Simpson – where the trial judge did not direct the jury in respect of the full definition of grievous bodily harm – whether the prosecutor misstated the facts of the case – whether the short-hand explanations of the definition of grievous bodily harm given by the trial judge were adequate in the circumstances of this case – whether parts of the prosecutor’s closing address could sensibly be construed as suggesting that the Crown was urging the jury to consider a case of murder

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where the deceased attempted but failed to punch Mr Simpson – where Mr Simpson was facing away from the deceased – where the deceased did not assault the appellant – where the jury were provided with a “Question Trail” document – where the trial judge did not direct that a defence of aiding in self-defence against an unprovoked assault, under s 271 with s 273 of the Criminal Code (Qld) (“the Code”), was available – where a defence of aiding in self-defence against an unprovoked assault was not available in the “Question Trail” – where the appellant contends the trial judge failed to explain how the law of self-defence operated in circumstances where the jury could not know what motivated the deceased to join the fight – where a defence under s 271 of the Code in respect of the appellant was not left to the jury – where trial counsel for the appellant did not suggest that Mr Simpson was entitled to act in self-defence against the deceased and did not suggest that the appellant may have been acting in his own self-defence – whether on a version of events most favourable the appellant, a jury could be left with a reasonable doubt as to whether…

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R v Lefoe [2024] QCA 240
Case
[2024] QCA 240
Decision Date

CaseChat Overview and Summary

The appellant, Lefoe, appealed his conviction for manslaughter, arguing that the trial judge's instructions to the jury were insufficient, the prosecutor misstated the facts, and the verdict was unreasonable. The court evaluated whether the trial judge's instructions regarding self-defence and grievous bodily harm were adequate, if the prosecutor's statements amounted to a misstatement of facts, and if the jury's verdict was supported by the evidence. The court examined the CCTV footage and the trial judge's instructions to determine if the jury could have reasonably convicted Lefoe based on the evidence presented.

The court found that the trial judge's instructions, while not perfect, were sufficient for the jury to understand the principles of self-defence and grievous bodily harm. The court also concluded that the prosecutor's statements, though perhaps not ideal, did not misstate the facts in a way that would have misled the jury. The court determined that the jury's verdict was supported by the evidence, including the CCTV footage, which showed the events leading up to the death of the deceased.

The court ultimately dismissed the appeal, finding that none of the grounds raised were sufficient to warrant a new trial. The court held that the trial judge's instructions, while not perfect, were adequate for the jury to understand the legal principles at issue. The prosecutor's statements, though not ideal, did not constitute a misstatement of facts that would have misled the jury. The court found that the evidence, including the CCTV footage, supported the jury's verdict of manslaughter.

ORDERS:
Appeal dismissed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the reasons that follow I would dismiss the appeal.The trial issues and evidence Admissions were made by the parties in respect of non-contentious facts. Amongst other things, the admissions confirmed that Mr Susin was dead; that the appellant had caused his death; and that a sample taken at 2.00 am on 1 October 2019 showed Mr Susin’s blood alcohol concentration was 0.178%. The Crown tendered recordings of relevant CCTV footage captured by cameras from the Gold Coast City Council and from the kebab shop on Orchid Avenue. Those recordings showed the incident. I have watched each of the CCTV recordings several times. On my assessment of the Gold Coast City Council CCTV, the footage shows the following:(a)at about 01:04:10 am, two of Mr Susin’s friends, Mr Jonathan Lodge and Mr Kai Thake, are seated on a footpath bench on Orchid Avenue. The two men have food which they have purchased from the nearby kebab shop and are sitting down to eat their meals;(b)at about 01:04:18 am, Mr Susin approaches the kerbside counter of the kebab shop, places an order and waits at the counter for his food. He is faced away from where his friends are seated;(c)over approximately the next minute, Mr Susin remains at the kebab shop counter, whilst his friends sit on the bench eating their food from open containers balanced on their laps;(d)at about 01:05:00 am, as they walk along Orchid Avenue, the appellant and Mr Simpson approach the location of the bench where Mr Lodge and Mr Thake are sitting. On the camera view, Mr Simpson is on the right-hand side, closest to where the men are seated on the footpath bench near the roadway, and the appellant is on the left-hand side, closest to the adjacent shopfronts;(e)at about 01:05:02 am, as the appellant and Mr Simpson walk past Mr Lodge and Mr Thake, Mr Simpson leans down and grabs food from the container on Mr Thake’s lap. As they continue up the street, Mr Simpson eats the food and is smiling and laughing. The appellant is also smiling and laughing. Mr Simpson and the appellant each turn back to face towards Mr Thake and Mr Lodge as they continue to walk backwards along the street away. Mr Simpson claps his hands. At the same time, Mr Thake and Mr Lodge gesture towards Mr Simpson and appear to be saying something to him (there is no audio). It is readily apparent that they are rebuking Mr Simpson for stealing some of Mr Thake’s food. Mr Simpson stops at the very edge of the area covered by the CCTV footage, whilst continuing to face back towards Mr Thake and Mr Lodge. The appellant stops briefly next to him, half-turned and nodding his head. The appellant is wearing a dark coloured hoodie with the hood pulled up;(f)at 01:05:15 am, the appellant continues up the road away from Mr Simpson disappearing from the camera view, whilst Mr Simpson pauses, then walks back towards Mr Lodge and Mr Thake, demonstratively licking his fingers and walking in an exaggerated hulking fashion as he nears the men;(g)at about 01:05:22 am, Mr Simpson is back at the bench, standing over Mr Thake and Mr Lodge, bending down close to their faces in what can only be described as an aggressive, confrontational posture. Words appear to be exchanged between the men;(h)at about 01:05:34 am, Mr Simpson lashes out with a flurry of punches aimed at Mr Lodge’s head. As Mr Lodge stands to defend himself, Mr Simpson grapples with him and eventually pulls him away from the bench and the pair fall to the ground. They continue to scuffle on the ground, with Mr Simpson on top and Mr Lodge underneath. Mr Thake stands from the bench and walks towards them, still holding his open takeaway container in one hand. At this point, Mr Susin is still waiting at the kebab shop counter and is oblivious to the confrontation and fight unfolding behind him and the appellant is still off screen;(i)at about 01:05:37 am, the appellant again appears, walking back up the street towards where Mr Simpson and Mr Lodge are fighting on the ground. As he walks towards the men, he slides his left hand into the left rear pocket of his jeans. He passes Mr Susin who is still waiting at the kebab shop counter. It is about this time that Mr Susin turns and notices the altercation taking place down the street. He walks from the counter towards the fight, effectively following the appellant;(j)at about 01:05:44 am, the appellant arrives at the scene and stands close to where Mr Simpson and Mr Lodge are fighting on the ground. Mr Thake reaches down with one hand, while still holding his container of food in the other, to grab Mr Lodge’s fist as he tries to punch Mr Simpson. The appellant then uses his right hand to push Mr Thake back and away. Mr Simpson is still on top of Mr Lodge and punching at his head as Mr Lodge attempts to fight back;(k)Mr Susin then walks up behind Mr Simpson, who is crouched atop Mr Lodge, and stands just in front of the appellant. Mr Susin reaches out with his left hand placing it on or near Mr Simpson’s back, as if trying to steady himself or to line up Mr Simpson. At about 01:05:47 am, Mr Susin swings his right arm with a closed fist at the back of Mr Simpson’s head. He misses completely. The momentum of his swing spins his body around so that he ends up off balance, facing back towards the appellant;(l)almost immediately, at about 01:05:49 am, the appellant reaches out his left hand to grab Mr Susin’s right shoulder and punches Mr Susin once to the head with his closed right fist. Mr Susin falls back and hits the pavement, where he does not move. The appellant pulls back his hoodie, faces towards Mr Thake and then grabs at Mr Lodge and Mr Simpson as they wrestle on the ground;(m)by about 01:05:55 am, Mr Simpson and Mr Lodge are standing but continuing to grapple. The appellant is standing next to them as they wrestle. As they turn away from him, he swings a punch at the back of Mr Lodge’s head but misses. Various other persons then start to intervene, including Mr Medhi Hajimiran, the owner of the kebab shop, and the pair are separated. The appellant starts to guide Mr Simpson away from the scene. Mr Thake attends to Mr Susin who has still not moved;(n)at about 01:06:10 am, as the appellant leads Mr Simpson away from the area, Mr Simpson lashes out at Mr Hajimiran, punching him to the side of the head. The appellant gesticulates towards Mr Hajimiran and pushes him away as he and Mr Simpson walk off.

Decision

Reasons for decision

In those circumstances, I consider it was open to the jury to be satisfied that the prosecution had negatived both defences and to thus find beyond reasonable doubt that the appellant’s killing of Mr Susin was unlawful.Conclusion As none of the grounds of appeal have been made out, the appeal ought to be dismissed.

Ratio Decidendi

Legal Principle Established

The appellant disagreed with final propositions put to him by the prosecutor that his motivation for standing next to Mr Simpson while he was on top of Mr Lodge was to keep other people out of the fight and that his intention throughout the whole incident was to let Mr Simpson continue fighting, because he was clearly bigger and winning.Consideration It is convenient to first set out relevant provisions of the Criminal Code relating to the defences of compulsion and self-defence. Section 31(1)(d) provides for a defence of compulsion in these terms:“31 Justification and excuse—compulsion (1)A person is not criminally responsible for an act or omission, if the person does or omits to do the act under any of the following circumstances, that is to say—…(d)when—(i) the person does or omits to do the act in order to save himself or herself or another person, or his or her property or the property of another person, from serious harm or detriment threatened to be inflicted by some person in a position to carry out the threat; and(ii) the person doing the act or making the omission reasonably believes he or she or the other person is unable otherwise to escape the carrying out of the threat; and(iii) doing the act or making the omission is reasonably proportionate to the harm or detriment threatened.” The relevant self-defence provisions are ss 271, 272 and 273, which provide:“271 Self-defence against unprovoked assault (1)When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for the person to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, if the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm.(2)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 can not 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 or grievous bodily harm.272 Self-defence against provoked assault(1)When a person has unlawfully assaulted another or has provoked an assault from another, and that other assaults the person with such violence as to cause reasonable apprehension of death or grievous bodily harm, and to induce the person to believe, on reasonable grounds, that it is necessary for the person’s preservation from death or grievous bodily harm to use force in self-defence, the person is not criminally responsible for using any such force as is reasonably necessary for such preservation, although such force may cause death or grievous bodily harm.(2)This protection does not extend to a case in which the person using force which causes death or grievous bodily harm first begun the assault with intent to kill or to do grievous bodily harm to some person; nor to a case in which the person using force which causes death or grievous bodily harm endeavoured to kill or to do grievous bodily harm to some person before the necessity of so preserving himself or herself arose; nor, in either case, unless, before such necessity arose, the person using such force declined further conflict, and quitted it or retreated from it as far as was practicable.273 Aiding in self-defenceIn any case in which it is lawful for any person to use force of any degree for the purpose of defending himself or herself against an assault, it is lawful for any other person acting in good faith in the first person’s aid to use a like degree of force for the purpose of defending the first person.”