R v McMartin - [2013] QCA 339

SUPREME COURT OF QUEENSLAND

CITATION:

R v McMartin [2013] QCA 339

PARTIES:

R
v
McMARTIN, Trent Alan-John
(appellant/applicant)

FILE NO/S:

CA No 294 of 2012
SC No 43 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

Supreme Court at Townsville

DELIVERED ON:

12 November 2013

DELIVERED AT:

Brisbane

HEARING DATE:

20 August 2013

JUDGES:

Margaret McMurdo P and Muir and Fraser JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.      The appeal against conviction is allowed.

2.      The guilty verdicts are set aside.

3.      A retrial is ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL ALLOWED – where the appellant was convicted of doing grievous bodily harm with intent and attempted murder – where the appellant owed the two complainants a sum of money – where the appellant and complainants had previously had a number of confrontations concerning the repayment of the money – where the two complainants attended the appellant's residence to recover the money – where the appellant struck the male complainant with a machete once through the hand as the complainant put his hands up to protect his face – where the appellant struck the female complainant with the machete twice through the top and front of her head and once through her hand – where the appellant poured petrol over the female complainant while she was on the ground and reached for a lighter – where the appellant contends that the trial judge erred when directing the jury as to how the prosecution might exclude the operation of defence of a dwelling under s 267 Criminal Code 1899 (Qld) – where the trial judge erred in directing the jury that if the prosecution has proved beyond reasonable doubt that the complainants were unlawfully on the premises or that the appellant had an intent to kill or do grievous bodily harm, then defence of a dwelling was not open – whether the errors amount to a substantial miscarriage of justice in terms of s 668E(1A) Criminal Code

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PRESENTATION OF DEFENCE CASE – where, at trial, the appellant's counsel asked the trial judge to leave only self-defence against unprovoked assault to the jury – where, at the conclusion of summing up, the appellant's counsel unequivocally conceded that there was insufficient evidence to raise the question of provocation for the purpose of self-defence against provoked assault in terms of s 272 Criminal Code – where, on appeal, the appellant contended that the evidence of the female complainant, two neighbours and the appellant's girlfriend raised self-defence against provoked assault – where the appellant contends that the trial judge erred in failing to direct the jury to consider self-defence against provoked assault – whether trial judge erred in not directing the…

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 McMartin

Details

AGLC: R v McMartin [2013] QCA 339
Case: [2013] QCA 339
Decision Date: 12 November 2013

CaseChat Overview and Summary

The appellant, R, was convicted of doing grievous bodily harm with intent and attempted murder, and appealed against his conviction. The case arose from a violent incident in which R attacked two complainants at his residence with a machete and petrol. The key legal issues in the appeal were whether the trial judge misdirected the jury on the operation of the defence of a dwelling under s 267 of the Criminal Code 1899 (Qld), and whether the trial judge failed to direct the jury on the possibility of self-defence against provoked assault under s 272 of the Criminal Code. The appellant argued that the trial judge's directions on these matters were incorrect and that they amounted to a substantial miscarriage of justice.

The court considered whether the trial judge correctly explained to the jury how the prosecution could exclude the operation of the defence of a dwelling. The trial judge had directed the jury that if the prosecution proved beyond reasonable doubt that the complainants were unlawfully on the premises or that R had an intent to kill or do grievous bodily harm, then the defence of a dwelling was not open. The court found that this direction was incorrect as it did not accurately reflect the law. The court also examined whether the trial judge should have directed the jury on the possibility of self-defence against provoked assault. The appellant's counsel had conceded at trial that there was insufficient evidence to raise the question of provocation for the purpose of self-defence against provoked assault. However, the court found that there was evidence from the female complainant, two neighbours and the appellant's girlfriend that could have supported a direction on self-defence against provoked assault.

The court concluded that the misdirections and non-directions on the defence of a dwelling and self-defence against provoked assault amounted to a substantial miscarriage of justice. The errors were significant because they affected the fundamental fairness of the trial and the ability of the jury to properly consider the evidence. The appeal against conviction was therefore allowed, the guilty verdicts were set aside, and a retrial was ordered.

Orders

Orders of the court

1. The appeal against conviction is allowed.

2. The guilty verdicts are set aside.

3. A retrial is ordered.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v McMartin [2013] QCA 339
PARTIES:	R v McMARTIN, Trent Alan-John (appellant/applicant)
FILE NO/S:	CA No 294 of 2012 SC No 43 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	Supreme Court at Townsville
DELIVERED ON:	12 November 2013
DELIVERED AT:	Brisbane
HEARING DATE:	20 August 2013
JUDGES:	Margaret McMurdo P and Muir and Fraser JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The appeal against conviction is allowed. 2. The guilty verdicts are set aside. 3. A retrial is ordered.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL ALLOWED – where the appellant was convicted of doing grievous bodily harm with intent and attempted murder – where the appellant owed the two complainants a sum of money – where the appellant and complainants had previously had a number of confrontations concerning the repayment of the money – where the two complainants attended the appellant's residence to recover the money – where the appellant struck the male complainant with a machete once through the hand as the complainant put his hands up to protect his face – where the appellant struck the female complainant with the machete twice through the top and front of her head and once through her hand – where the appellant poured petrol over the female complainant while she was on the ground and reached for a lighter – where the appellant contends that the trial judge erred when directing the jury as to how the prosecution might exclude the operation of defence of a dwelling under s 267 Criminal Code 1899 (Qld) – where the trial judge erred in directing the jury that if the prosecution has proved beyond reasonable doubt that the complainants were unlawfully on the premises or that the appellant had an intent to kill or do grievous bodily harm, then defence of a dwelling was not open – whether the errors amount to a substantial miscarriage of justice in terms of s 668E(1A) Criminal Code CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PRESENTATION OF DEFENCE CASE – where, at trial, the appellant's counsel asked the trial judge to leave only self-defence against unprovoked assault to the jury – where, at the conclusion of summing up, the appellant's counsel unequivocally conceded that there was insufficient evidence to raise the question of provocation for the purpose of self-defence against provoked assault in terms of s 272 Criminal Code – where, on appeal, the appellant contended that the evidence of the female complainant, two neighbours and the appellant's girlfriend raised self-defence against provoked assault – where the appellant contends that the trial judge erred in failing to direct the jury to consider self-defence against provoked assault – whether trial judge erred in not directing the…