R v Mogg

Case [2000] QCA 244


SUPREME COURT OF QUEENSLAND

CITATION: R v Mogg [2000] QCA 244
PARTIES: R
v
MOGG, Daniel James Fletcher
(appellant)
FILE NO/S: CA No 317 of 1999
SC No 397 of 1999
DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction
ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON: 20 June 2000
DELIVERED AT: Brisbane
HEARING DATE: 2 February 2000
JUDGES: McMurdo P, Thomas JA, Wilson J
Separate reasons of each member of the Court concurring as to the orders made.
ORDER: Appeal allowed.  Re-trial ordered.
CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – HOMICIDE – CAUSATION

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE AND INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – whether verdict was unsafe or unsatisfactory –which blows caused the facial injuries leading to death a matter for properly instructed jury to determine – ample evidence from which jury could be satisfied that the facial injuries occurred outside the house – whether verdict was unsafe or unsatisfactory as no reasonable basis for excluding the operation of provocation under s 304 Criminal Code

CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – PROVOCATION – OBJECTIVE TEST – whether failure to identify for the jury the evidence of provocative conduct and its effect upon the appellant – failure to direct the jury as to the relevance of the appellant’s youth in determining whether an ordinary person of the appellant’s age would have reacted to that level of provocation – retrial ordered

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – CONSIDERATION OF SUMMING UP AS A WHOLE – summing up consisting mainly of abstract statement of law followed by lengthy summary of evidence – failure to provide jury with sufficient assistance on issues raised – observations of "guiding rule" and other requirements in summing up – failure to relate issues to relevant law and facts – failure to outline main arguments of counsel

CRIMINAL LAW – EVIDENCE – PROPENSITY OF DECEASED TO DEAL IN AND USE DRUGS –  IMPROPER ADMISSION OR REJECTION OF EVIDENCE - whether evidence of deceased’s drug conviction and of police surveillance of deceased admissible – bad character of deceased irrelevant to issue of self-defence – reservations concerning R v Ellem (No 1), Re Knowles and R v Gibb and McKenzie expressed by Thomas JA

Criminal Code, s 304
Crimes Act 1900 (NSW), s 405AA

Alford v Magee (1951-1952) 85 CLR 437, considered
Domican v R (1991-2) 173 CLR 554, considered
Farrell v R (1998) 72 ALJR 1292, considered
Holland v R (1993) 117 ALR 1993, considered
KBT v The Queen (1997) 191 CLR 417, considered
Martin v Osborne (1936) 55 CLR 367, considered
Nembhard v R (1982) 74 CrAppR 144, considered
O'Leary v The King (1946) 73 CLR 566, considered
R…

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AGLC
R v Mogg [2000] QCA 244
Case
[2000] QCA 244
Decision Date

CaseChat Overview and Summary

In the case of R v Mogg, the appellant was convicted of the murder of a man, the deceased. The dispute centred on the causation of the deceased's injuries, the adequacy of the provocation defence, and the propriety of certain evidence admitted at trial. The decision was handed down by the court of appeal, which was required to consider whether the verdict was unreasonable or unsafe, and if there were any misdirections or non-directions by the trial judge.

The legal issues before the court included whether the trial judge's summing up was adequate, particularly in relation to the issues of provocation and the relevance of the appellant's youth. The court also had to determine whether the evidence of the deceased's drug use and police surveillance was properly admitted. Furthermore, the court examined if the failure to identify for the jury the evidence of provocative conduct and its effect upon the appellant constituted a misdirection or non-direction by the trial judge.

The court of appeal found that the trial judge's summing up did not provide sufficient assistance to the jury on the issues raised, and that there was a failure to relate the issues to relevant law and facts. The court also concluded that the failure to identify the evidence of provocative conduct and its effect upon the appellant constituted a misdirection or non-direction by the trial judge. As a result, the appeal was allowed, and a re-trial was ordered.

The court held that the evidence of the deceased's drug use and police surveillance was improperly admitted, as it was irrelevant to the issue of self-defence. The court also expressed reservations about the applicability of certain previous cases in this context. The court further found that the verdict was unsafe and unsatisfactory due to the misdirections and non-directions by the trial judge.

Orders

Orders of the court

Appeal allowed. Re-trial ordered.

Background

Background to the litigation

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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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