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
[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 Mogg
Sign in free to access the full text
Details
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.