R v Mickelo - [2018] QCA 295

SUPREME COURT OF QUEENSLAND

CITATION:

R v Mickelo [2018] QCA 295

PARTIES:

R
v
MICKELO, Morris Steven
(appellant)

FILE NO/S:

CA No 29 of 2017
DC No 1096 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 9 February 2017 (Rafter SC DCJ)

DELIVERED ON:

30 October 2018

DELIVERED AT:

Brisbane

HEARING DATE:

21 August 2018

JUDGES:

Fraser and Morrison JJA and Flanagan J

ORDER:

The appeal against conviction is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where the appellant, following a three-day trial, was convicted by jury of unlawfully wounding a police officer with intent to resist or prevent that officer from acting under lawful authority, and of wilfully obstructing another police officer while that officer was acting in the execution of duty – where the police officers had attended at a residential unit in response to noise complaints – where one of the police officers sought to handcuff the appellant – where the appellant twice forced that police officer into a window, shattering the window and causing lacerations to the officer’s arms – where the appellant had earlier refused to follow a repeated direction from the other police officer that he go downstairs – where footage from this second officer’s body-worn camera was tendered at trial – whether it was reasonably open to the jury, upon the whole of the evidence, to be satisfied beyond reasonable doubt that the first officer was acting under lawful authority when he sought to handcuff the appellant, and that the second officer was acting in execution of her duty when she instructed the appellant to go downstairs

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE – GENERAL PRINCIPLES – where the learned trial judge, in the course of summing up, made no reference to accident pursuant to s 23(1)(b) of the Queensland’s Criminal Code in respect of the unlawful wounding offence – where the appellant’s defence counsel at trial at no point sought directions of that kind – where, immediately before the relevant police officer’s second collision with the window, the appellant said words similar to “I’m gonna put your head through” – whether there was evidence before the jury raising the possibility that neither the appellant, nor an ordinary person, could reasonably have foreseen that the lacerations suffered by the relevant police officer were a possible consequence of the appellant’s use of force – whether the learned trial judge’s failure to direct the jury as to accident amounted to an error in law or occasioned a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE – GENERAL PRINCIPLES – where the Crown at trial did not seek to identify which of the two collisions with 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 Mickelo

Details

AGLC: R v Mickelo [2018] QCA 295
Case: [2018] QCA 295
Decision Date: 30 October 2018

CaseChat Overview and Summary

The appellant, Mickelo, was convicted by a jury of unlawfully wounding a police officer with intent to resist or prevent the officer from acting under lawful authority, and of wilfully obstructing another police officer while that officer was acting in the execution of duty. The convictions arose from an incident where police officers attended at a residential unit in response to noise complaints. One of the officers sought to handcuff Mickelo, who, in resisting this attempt, twice forced the officer into a window, shattering it and causing lacerations to the officer’s arms. The second officer had instructed Mickelo to go downstairs, which he refused. Video footage from the second officer’s body-worn camera was presented at trial.

The central legal issues before the court were whether it was reasonably open to the jury to be satisfied beyond reasonable doubt that the police officers were acting under lawful authority and in the execution of their duty. Additionally, the court examined whether the omission of an accidental harm direction by the trial judge in respect of the unlawful wounding charge amounted to a miscarriage of justice. The Crown's failure to identify which window collision caused the lacerations was also considered to determine if it introduced latent ambiguity into the charge, thereby impairing Mickelo’s ability to respond to the case against him.

The court found that the jury was reasonably satisfied that the officers were acting under lawful authority and in the execution of their duties, based on the evidence presented. The court concluded that the trial judge's omission of an accidental harm direction did not occasion a miscarriage of justice because the evidence indicated that the harm was foreseeable. The court also determined that the Crown’s failure to distinguish between the window collisions did not introduce latent ambiguity into the charge, as the evidence sufficiently established the circumstances leading to the injuries.

The appeal against conviction was dismissed, affirming the jury's verdicts.

Orders

Orders of the court

The appeal against conviction is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Mickelo [2018] QCA 295
PARTIES:	R v MICKELO, Morris Steven (appellant)
FILE NO/S:	CA No 29 of 2017 DC No 1096 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 9 February 2017 (Rafter SC DCJ)
DELIVERED ON:	30 October 2018
DELIVERED AT:	Brisbane
HEARING DATE:	21 August 2018
JUDGES:	Fraser and Morrison JJA and Flanagan J
ORDER:	The appeal against conviction is dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where the appellant, following a three-day trial, was convicted by jury of unlawfully wounding a police officer with intent to resist or prevent that officer from acting under lawful authority, and of wilfully obstructing another police officer while that officer was acting in the execution of duty – where the police officers had attended at a residential unit in response to noise complaints – where one of the police officers sought to handcuff the appellant – where the appellant twice forced that police officer into a window, shattering the window and causing lacerations to the officer’s arms – where the appellant had earlier refused to follow a repeated direction from the other police officer that he go downstairs – where footage from this second officer’s body-worn camera was tendered at trial – whether it was reasonably open to the jury, upon the whole of the evidence, to be satisfied beyond reasonable doubt that the first officer was acting under lawful authority when he sought to handcuff the appellant, and that the second officer was acting in execution of her duty when she instructed the appellant to go downstairs CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE – GENERAL PRINCIPLES – where the learned trial judge, in the course of summing up, made no reference to accident pursuant to s 23(1)(b) of the Queensland’s Criminal Code in respect of the unlawful wounding offence – where the appellant’s defence counsel at trial at no point sought directions of that kind – where, immediately before the relevant police officer’s second collision with the window, the appellant said words similar to “I’m gonna put your head through” – whether there was evidence before the jury raising the possibility that neither the appellant, nor an ordinary person, could reasonably have foreseen that the lacerations suffered by the relevant police officer were a possible consequence of the appellant’s use of force – whether the learned trial judge’s failure to direct the jury as to accident amounted to an error in law or occasioned a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE – GENERAL PRINCIPLES – where the Crown at trial did not seek to identify which of the two collisions with the…