R v Micallef; R v Lourens - [2025] QCA 21

SUPREME COURT OF QUEENSLAND

CITATION:

R v Micallef; R v Lourens [2025] QCA 21

PARTIES:

In CA No 127 of 2024:

R
v
MICALLEF, Jake Michael
(appellant)

In CA No 128 of 2024:

R
v
LOURENS, Jason Rudi
(appellant)

FILE NO/S:

CA No 127 of 2024
CA No 128 of 2024
DC No 106 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Maroochydore – Date of Convictions: 28 May 2024 (Long SC DCJ)

DELIVERED ON:

4 March 2025

DELIVERED AT:

Brisbane

HEARING DATE:

11 February 2025

JUDGES:

Mullins P, Gotterson AJA, Henry J

ORDERS:

1.   Appeals allowed.

2.   Convictions of both appellants on count 2 set aside.

3.   New trial ordered on count 2.

CATCHWORDS:

APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – where the appellants were each convicted after a trial on a charge of grievous bodily harm – where the defences of self-defence and aiding in self-defence as per ss 271 and 273 of the Criminal Code (Qld) were raised – where the learned trial judge made an exclusionary effect direction whereby the jury were directed that if they accepted the complainant’s evidence the defences of self-defence and aiding in self-defence would not arise – whether mixed interpretations of the complainant’s evidence were open – whether the learned trial judge’s direction unduly confined the jury’s task

APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – where the appellants were each convicted after a trial on a charge of grievous bodily harm – where during said trial, the court received a note from the jury asking if it could return separate verdicts for each defendant – where the learned trial judge directed the jury that because of the circumstances of the case the jury’s answer would be ‘both guilty or both not guilty’ – whether it was an error to confine the jury to returning the same verdicts against both defendants – whether this error caused a miscarriage of justice

APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – where the appellants were convicted after a trial on a charge of grievous bodily harm – where the learned trial judge directed the jury on the defences of self-defence and aiding self-defence per ss 271 and 273 of the Criminal Code (Qld) – where the learned trial judge also directed the jury on excessive force per s 283 of the Criminal Code (Qld) – whether the learned trial judge was in error to refer to s 283 of the Criminal Code (Qld) – whether any such error risked the jury misunderstanding the proper defence tests

Criminal Code (Qld), s 271, s 273, s 283

HML v The Queen (2008) 235 CLR 334; [2008] HCA 16, cited
R v Burton[2003] QCA 370, applied

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.

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Details

Case: [2025] QCA 21
Decision Date: 4 March 2025

CaseChat Overview and Summary

In the matter of R v Micallef and R v Lourens, the Queensland Court of Appeal reviewed the convictions of the appellants on charges of grievous bodily harm. The court was tasked with determining whether there were errors in the trial judge's directions to the jury that resulted in a miscarriage of justice. The key issues were whether the trial judge's direction on the defences of self-defence and aiding in self-defence was erroneous, whether the confinement of the jury to returning the same verdicts for both defendants was proper, and if there was any error in the reference to excessive force under the Criminal Code (Qld).

The court found that the complainant's evidence was not entirely consistent, particularly regarding the sequence of events and the actions of the parties involved. This inconsistency meant that there were multiple interpretations of the evidence open to the jury, which could have led to different conclusions about the applicability of the defences. The trial judge's exclusionary effect direction, which suggested that if the jury accepted the complainant’s evidence, the defences of self-defence and aiding in self-defence would not apply, was seen as unduly limiting the jury's consideration of the evidence. Additionally, the court determined that it was an error to restrict the jury to a unanimous verdict for both defendants, as it did not allow for individual consideration of each defendant's actions.

The court concluded that the misdirections by the trial judge likely caused a miscarriage of justice, leading to an unfair trial. The references to excessive force under section 283 of the Criminal Code (Qld) were deemed unnecessary but did not contribute to any misunderstanding of the defence tests. The court ordered a new trial on count 2, allowing for the proper consideration of the evidence and the defences of self-defence and aiding in self-defence. The appeals were allowed, and the convictions on count 2 were set aside.

Orders

Orders of the court

1. Appeals allowed.

2. Convictions of both appellants on count 2 set aside.

3. New trial ordered on count 2.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The issues to be determined in the appeal are conveniently identified in the conclusions to be reached about them, namely: 1. Mixed interpretations of the complainant’s evidence were open.2. It was an error to confine consideration of defences to count 2 to consideration of whether the jury accepted the complainant’s account.3. It was an error to confine the jury to returning the same verdicts against both defendants on count 2.4. The confining quality of the directions caused a miscarriage.5. Reference to s 283 was unnecessary but inconsequential.6. There is no substance to other appeal grounds.7. A new trial should be ordered.1. Mixed interpretations of the complainant’s evidence were open. On any view of the evidence, the complainant, Lourens, Micallef and the only other men from the unit who gave evidence, Sanson and Hennessey, were all adversely affected by alcohol. The complainant may also have used cocaine. In recalling the events of the night when giving evidence, the complainant’s answers were not always fully responsive and proffered limited detail. It is unclear whether this was a symptom or cause of variability which emerged in his evidence of both episodes.Aspects of the complainant’s evidence in support of count 1 were variable The complainant alleged of the first episode that there was a fight between him and ‘two other dudes’. Micallef and Lourens were strangers to the complainant before this night. He did not purport to identify them, but the evidence of other witnesses impliedly identified them as the relevant two ‘dudes’. The complainant described that fight as initially being between him and one of the men, Lourens, with a second man, Micallef, then intervening. On his own account he kneed the intervener in the head. Micallef ended up with a bloodied nose as a result. The complainant claimed he ended up on the ground being punched and kicked by the men to the head for 10 to 15 seconds. However, he conceded in cross-examination that when the second man intervened, the complainant had been punching the first man who was on the ground. This variability during his evidence meant there was more than one interpretation open of his evidence. It raised the obvious possibility it was Lourens, not him, who was first attacked on the ground. That in turn heightened the possibility Lourens was acting in self-defence and Micallef was aiding in self-defence at the time of the alleged commission of count 1. That possibility found support in the evidence of the organiser of this ill-fated boys’ weekend, Sanson, and his friend Hennessey. Hennessey, who had invited the complainant, testified he saw the complainant, Lourens and Micallef, whose nose was bloodied, all punching into each other and he intervened, pushing them away from each other. Sanson saw Hennessey intervening, at a time by which Lourens and Micallef had pinned the complainant down, but they were not punching him.Aspects of the complainant’s evidence in support of count 2 were variable

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

There was other imprecision in the complainant’s evidence, including when the broken jaw was suffered. More relevantly to this appeal, there was also variability about any cessation of violence by the complainant before he ended up on the ground being assaulted. That variability, explained in greater detail below, meant more than one view of the complainant’s evidence was open on the topic.2. It was an error to confine consideration of defences to count 2 to consideration of whether the jury accepted the complainant’s account.The complainant’s account was the main source of evidence justifying consideration of the defences of self-defence and aiding in self-defence in count 2 The complainant’s account was the principal source of evidence in support of the conclusion, which is not in dispute, that the defences of self-defence and aiding in self-defence reasonably arose for the jury’s consideration. There was little other evidence of what had occurred during the second episode. Unlike the first episode, there were no eyewitnesses to the second episode. Micallef and Lourens did not give evidence, although evidence of their brief accounts to others was led. When Lourens was spoken to by police who arrived later that night, he said of the episode downstairs that after the complainant had smashed a bottle over his head he had jumped the fence, chased the complainant down the road and ‘kicked the shit out him’. He said he had wanted to kill him at that point. That drunken admission’s reference to a chase down the road did not fit comfortably with the complainant’s eventual version of events. Lourens’ account of the second episode in his later interview with police when sober was sparse. He explained he had been ‘wasted’. He recalled he was ‘bottled’ over the top of the gate and ‘got into an altercation’ of which he could recall no detail. Micallef said in a police interview that his only physical involvement in any episode that night was when he had intervened to split up the fight upstairs in the unit and been kneed in the nose by the complainant, breaking it. His interview involved no admission of involvement in violence outside the apartment complex. However, Sanson testified that later that night Micallef had told him, in reference to events downstairs between the complainant and Lourens, they had started fighting again and Micallef had tried to break the fight up and been punched again by the complainant.The exclusory effect direction confined consideration of defences for count 2 to consideration of whether the jury accepted the complainant’s account The primary judge’s directions to the jury regarding self-defence were given firstly in respect of count 1 and then in respect of count 2. In directing on count 1 his Honour explained the operation of the defences of self-defence and aiding in self-defence, as contained respectively in ss 271(1) and 273 of the Code. In directing upon count 2, and that offence’s element of unlawfulness, his Honour explained that what he had already explained about the defences of self-defence and aiding in self-defence was potentially applicable to the jury’s consideration of count 2.

CITATION:	R v Micallef; R v Lourens [2025] QCA 21
PARTIES:	In CA No 127 of 2024: R v MICALLEF, Jake Michael (appellant) In CA No 128 of 2024: R v LOURENS, Jason Rudi (appellant)
FILE NO/S:	CA No 127 of 2024 CA No 128 of 2024 DC No 106 of 2023
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Maroochydore – Date of Convictions: 28 May 2024 (Long SC DCJ)
DELIVERED ON:	4 March 2025
DELIVERED AT:	Brisbane
HEARING DATE:	11 February 2025
JUDGES:	Mullins P, Gotterson AJA, Henry J
ORDERS:	1. Appeals allowed. 2. Convictions of both appellants on count 2 set aside. 3. New trial ordered on count 2.
CATCHWORDS:	APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – where the appellants were each convicted after a trial on a charge of grievous bodily harm – where the defences of self-defence and aiding in self-defence as per ss 271 and 273 of the Criminal Code (Qld) were raised – where the learned trial judge made an exclusionary effect direction whereby the jury were directed that if they accepted the complainant’s evidence the defences of self-defence and aiding in self-defence would not arise – whether mixed interpretations of the complainant’s evidence were open – whether the learned trial judge’s direction unduly confined the jury’s task APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – where the appellants were each convicted after a trial on a charge of grievous bodily harm – where during said trial, the court received a note from the jury asking if it could return separate verdicts for each defendant – where the learned trial judge directed the jury that because of the circumstances of the case the jury’s answer would be ‘both guilty or both not guilty’ – whether it was an error to confine the jury to returning the same verdicts against both defendants – whether this error caused a miscarriage of justice APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – where the appellants were convicted after a trial on a charge of grievous bodily harm – where the learned trial judge directed the jury on the defences of self-defence and aiding self-defence per ss 271 and 273 of the Criminal Code (Qld) – where the learned trial judge also directed the jury on excessive force per s 283 of the Criminal Code (Qld) – whether the learned trial judge was in error to refer to s 283 of the Criminal Code (Qld) – whether any such error risked the jury misunderstanding the proper defence tests Criminal Code (Qld), s 271, s 273, s 283 HML v The Queen (2008) 235 CLR 334; [2008] HCA 16, cited R v Burton[2003] QCA 370, applied