R v Major - [2013] QCA 114

SUPREME COURT OF QUEENSLAND

CITATION:

R v Major [2013] QCA 114

PARTIES:

R
v
MAJOR, Kenneth Faron Shawn Lionel
(appellant)

FILE NO/S:

CA No 269 of 2012
SC No 357 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

17 May 2013

DELIVERED AT:

Brisbane

HEARING DATE:

10 April 2013

JUDGES:

Fraser JA and Daubney and Peter Lyons JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Appeal allowed.

2.   Appellant’s conviction set aside.

3.   There be a new trial of the charge of manslaughter.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the appellant was convicted of manslaughter – where the appellant contends that a defence under s 270 of the Code of Criminal Law should have been left to the jury, but was not – whether a defence under s 270 of the Code of Criminal Law is available when a person is charged with manslaughter – whether a defence under s 270 of the Code of Criminal Law was available in the present case – whether there was a miscarriage of justice

CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – PROVOCATION – AVAILABILITY OF DEFENCE – where the respondent submitted that although the appellant was physically present when the provocation occurred his attention was directed elsewhere – where the respondent submitted the appellant was not “in the presence of” the provocative conduct – whether a defence of provocation is available

Criminal Code 1899 (Qld), s 264, s 270

Clarke v R [2008] NSWCCA 36, cited
Davis v The Queen (1998) 73 ALJR 139, cited
Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, cited
Howe v The Queen (1981) 55 ALJR 5, considered
Kaporonovski v The Queen (1973) 133 CLR 209; [1973] HCA 35, cited
Oxer v Grant, Unreported, Supreme Court of Western Australia, 3 November 1994, considered
Pearson’s Case (1835) 2 Lew CC 216; [1835] EngR 189, cited
Pollock v The Queen (2010) 242 CLR 233; [2010] HCA 35, cited
R v Arden [1975] VR 449; [1975] VicRp 43, cited
R v Fisher (1837) 8 C & P 182; [1837] EngR 1115, cited
R v Hagarty[2001] QCA 558, cited
R v Johnstone[2003] QCA 559, considered
R v Martyr [1962] Qd R 398, cited
R v Prow [1990] 1 Qd R 64, considered
R v Quartly (1986) 11 NSWLR 332, cited
R v Sleep [1966] Qd R 47, considered
R v Terry [1964] VR 248; [1964] VicRp 33, considered
R v Williams [1971] Qd R 414, cited
Simic v The Queen (1980) 144 CLR 319; [1980] HCA 25, cited
Van Den Hoek v The Queen (1986) 161 CLR 158; [1986] HCA 76,…

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 Major

Details

AGLC: R v Major [2013] QCA 114
Case: [2013] QCA 114
Decision Date: 17 May 2013

CaseChat Overview and Summary

The case of R v Major involved the appellant, who was convicted of manslaughter, appealing against his conviction and sentence. The appellant argued that the trial judge erred in failing to leave the defence of provocation to the jury, a defence provided under section 270 of the Code of Criminal Law. He further argued that the trial judge should have left the defence of provocation under section 270 to the jury, as there was sufficient evidence to support it.

The court was required to determine whether the defence of provocation under section 270 of the Code of Criminal Law was available to the appellant when charged with manslaughter. Additionally, the court had to decide whether the trial judge erred in failing to leave the defence of provocation to the jury, and if so, whether this amounted to a miscarriage of justice warranting a new trial.

The court held that the defence of provocation under section 270 of the Code of Criminal Law was indeed available to the appellant when charged with manslaughter. The court found that the trial judge erred in failing to leave the defence of provocation to the jury, as there was sufficient evidence to support it. This error amounted to a miscarriage of justice, and therefore the court allowed the appeal, set aside the appellant's conviction, and ordered a new trial on the charge of manslaughter.

Orders

Orders of the court

1. Appeal allowed.

2. Appellant’s conviction set aside.

3. There be a new trial of the charge of manslaughter.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Major [2013] QCA 114
PARTIES:	R v MAJOR, Kenneth Faron Shawn Lionel (appellant)
FILE NO/S:	CA No 269 of 2012 SC No 357 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	17 May 2013
DELIVERED AT:	Brisbane
HEARING DATE:	10 April 2013
JUDGES:	Fraser JA and Daubney and Peter Lyons JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal allowed. 2. Appellant’s conviction set aside. 3. There be a new trial of the charge of manslaughter.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the appellant was convicted of manslaughter – where the appellant contends that a defence under s 270 of the Code of Criminal Law should have been left to the jury, but was not – whether a defence under s 270 of the Code of Criminal Law is available when a person is charged with manslaughter – whether a defence under s 270 of the Code of Criminal Law was available in the present case – whether there was a miscarriage of justice CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – PROVOCATION – AVAILABILITY OF DEFENCE – where the respondent submitted that although the appellant was physically present when the provocation occurred his attention was directed elsewhere – where the respondent submitted the appellant was not “in the presence of” the provocative conduct – whether a defence of provocation is available Criminal Code 1899 (Qld), s 264, s 270 Clarke v R [2008] NSWCCA 36, cited Davis v The Queen (1998) 73 ALJR 139, cited Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, cited Howe v The Queen (1981) 55 ALJR 5, considered Kaporonovski v The Queen (1973) 133 CLR 209; [1973] HCA 35, cited Oxer v Grant, Unreported, Supreme Court of Western Australia, 3 November 1994, considered Pearson’s Case (1835) 2 Lew CC 216; [1835] EngR 189, cited Pollock v The Queen (2010) 242 CLR 233; [2010] HCA 35, cited R v Arden [1975] VR 449; [1975] VicRp 43, cited R v Fisher (1837) 8 C & P 182; [1837] EngR 1115, cited R v Hagarty[2001] QCA 558, cited R v Johnstone[2003] QCA 559, considered R v Martyr [1962] Qd R 398, cited R v Prow [1990] 1 Qd R 64, considered R v Quartly (1986) 11 NSWLR 332, cited R v Sleep [1966] Qd R 47, considered R v Terry [1964] VR 248; [1964] VicRp 33, considered R v Williams [1971] Qd R 414, cited Simic v The Queen (1980) 144 CLR 319; [1980] HCA 25, cited Van Den Hoek v The Queen (1986) 161 CLR 158; [1986] HCA 76,…