R v Middleton

[2003] QCA 431

SUPREME COURT OF QUEENSLAND

CITATION:

R v Middleton [2003] QCA 431

PARTIES:

R
v
MIDDLETON, Simon
(appellant)

FILE NO/S:

CA No 152 of 2003
SC No 1 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Longreach

DELIVERED ON:

3 October 2003

DELIVERED AT:

Brisbane

HEARING DATE:

22 September 2003

JUDGES:

Davies JA, Jones and Holmes JJ
Judgment of the Court

ORDERS:

1.  Appeal against conviction allowed
2.  Set aside the conviction
3.  New trial ordered
4.  The appellant is remanded in custody until further order of the Court

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – PARTICULAR MATTERS – DISCHARGE OF JURY – where in a murder trial the judge had exercised his discretion to refuse an application to discharge a jury – whether this refusal occasioned the risk of a substantial miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION – where appellant intoxicated at the time of the offence and the jury found appellant had formed the relevant intention – whether the learned trial judge erred in his summing-up on the effect of intoxication for the purpose of s 28(3) of the Criminal Code

Criminal Code 1899 (Qld), s 28(3)

Crofts v The Queen (1996) 186 CLR 427, applied
R v Batchelor [2003] QCA 246; CA No 335 of 2002, 10 June 2003, considered
R v Nicholson [1956] St R Qd 520, considered
Viro v The Queen (1978) 141 CLR 38, considered

COUNSEL:

P J Callaghan for the appellant
M J Copley for the respondent

SOLICITORS:

Robertson O'Gorman for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. :THE COURT  The appellant was convicted, following a trial of the offence, that on 22 June 2002 he murdered Jessie William Horne.  Horne died from the effects of a stab wound to his neck inflicted in the course of a scuffle at an hotel in Barcaldine.  It was common ground that only the deceased and the appellant were involved in the scuffle and that it was the appellant who effected the stabbing.

1. The issues raised for the jury’s consideration were whether the appellant had acted in self-defence; whether the prosecution had proved the element of intent to kill or to do grievous bodily harm; and whether the appellant’s actions were taken in response to the deceased’s provocation.

1. By this appeal, two points are raised:-

(1)          whether the learned trial judge erred in refusing an application for the jury to be discharged soon after the commencement of the trial;

(2) whether the learned trial judge erred in his summing-up on the effect of intoxication for the purpose of s 28(3) of the Criminal Code.

Failure to discharge the jury

1. After 12 persons had been selected to act as the jury, the learned trial judge enquired…