R v Legradi and Lombaard

SUPREME COURT OF QUEENSLAND

CITATION:

R v Legradi & Lombaard [2010] QCA 364

PARTIES:

R
v
LEGRADI, Denis
(appellant)

R
v
LOMBAARD, Morne Ricardo
(appellant)

FILE NO/S:

CA No 152 of 2010
CA No 160 of 2010
SC No 579 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

17 December 2010

DELIVERED AT:

Brisbane

HEARING DATE:

26 November 2010

JUDGES:

Holmes, Fraser and White JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

In CA No 152 of 2010:

1.   The appeal is allowed.

2.   The verdict is set aside.

3.   A verdict of acquittal is entered.

In CA No 160 of 2010:

1.   The appeal is allowed.

2.   The verdict is set aside.

3.   A verdict of acquittal is entered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where appellants convicted of manslaughter – where appellants restrained the deceased while acting as security officers – where there was evidence that the appellant, Legradi, had applied a “choker” hold to the deceased – where there was evidence that the appellant, Lombaard, had kicked and punched the deceased – where there were multiple possible causes of death – whether appellants’ acts a substantial or significant cause of death – whether the jury could exclude other reasonable hypothesis as to causes of death consistent with innocence of the appellants

Criminal Code 1899 (Qld), s 293

Campbell v The Queen [1981] WAR 286, cited
R v Sherrington & Kuchler [2001] QCA 105, cited
R v Summers [1990] 1 Qd R 92, considered
Royall v The Queen (1990) 172 CLR 378; [1991] HCA 27, applied

COUNSEL:

In CA No 152 of 2010:

B Farr SC for the appellant
M J Copley SC for the respondent

In CA No 160 of 2010:
A Kimmins, with Y Chekirova, for the appellant
M J Copley SC for the respondent

SOLICITORS:

In CA No 152 of 2010:

Guest Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

In CA No 160 of 2010
Rostron Carlyle for the appellant
Director of Public Prosecutions (Queensland) for the respondent

[1]      HOLMES JA:  The appellants were convicted of the manslaughter of Terii Tararo, whom they had restrained while acting as security officers outside a tavern.  Both appeal their convictions on the ground that the verdicts were unsafe and unsatisfactory and, more particularly, that the Crown could not prove that their actions contributed significantly or substantially to Mr Tararo’s death.  Legradi also appeals against the sentence of seven years imposed on him.

[2]      The appellants went to trial with another man, Tepaukonui, who was acquitted of the murder of Tararo but was found guilty of assaulting one of Tararo’s companions.  Tepaukonui, like Legradi and Lombaard, was working on the evening of 18 May 2008 as a security officer at the Fisherman’s Wharf Tavern…