R v Newbould - [2019] QCA 284

SUPREME COURT OF QUEENSLAND

CITATION:

R v Newbould [2019] QCA 284

PARTIES:

R
v
NEWBOULD, Steven Michael
(appellant)

FILE NO/S:

CA No 143 of 2019
DC No 541 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Maroochydore – Date of Conviction: 16 May 2019 (Cash QC DCJ)

DELIVERED ON:

6 December 2019

DELIVERED AT:

Brisbane

HEARING DATE:

7 August 2019

JUDGES:

Gotterson and Philippides and McMurdo JJA

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – DEFENCE MATTERS – DEFENCE OF PERSONS OR PROPERTY – DIRECTIONS TO JURY – where the appellant was convicted after a trial of an offence of assault occasioning bodily harm – where the appellant was found to have assaulted the complainant by punching him in the face several times at a nightclub – where the trial judge directed the jury orally that the prosecution bore the burden to “exclude” self-defence in the terms outlined in the Benchbook but did not describe that burden in a document provided to the jury that summarised the different ways in which the defence could be excluded – whether the jury may have misunderstood the burden because the word “exclude” was not included in that document – whether the jury was misdirected as to what had to be proved by the prosecution in relation to self-defence

CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – IGNORANCE AND MISTAKE OF FACT – where the appellant was convicted after a trial of an offence of assault occasioning bodily harm – where the appellant was found to have assaulted the complainant by punching him in the face several times at a nightclub – where the appellant was intoxicated at the time of the incident – where the appellant’s counsel at trial submitted that the appellant mistakenly believed that he was being or would be assaulted and acted in response to that belief – where the trial judge directed the jury as to a defence of mistake of fact – where that direction did not include an instruction that the jury must take into account subjective factors such as the appellant’s intoxication in deciding whether there was an honest mistake – whether an adequate direction required the trial judge to instruct the jury to take into account the appellant’s intoxication – whether the jury was misdirected as to a mistake of fact

CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – PROVOCATION – where the appellant was convicted after a trial of an offence of assault occasioning bodily harm – where the appellant was found to have assaulted the complainant by punching him in the face several times at a nightclub – where the incident was captured on security cameras but the footage lacked audio – where the appellant’s counsel at trial submitted that the defence of provocation should be left to the jury – where that counsel identified the provocative acts as the complainant’s hand movements in 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 Newbould

Details

AGLC: R v Newbould [2019] QCA 284
Case: [2019] QCA 284
Decision Date: 6 December 2019

CaseChat Overview and Summary

In the case of R v Newbould, the appellant contested his conviction for assault occasioning bodily harm following a trial in which he was found to have assaulted the complainant by punching him in the face several times at a nightclub. The appellant's counsel argued that he mistakenly believed he was being or would be assaulted and acted in response to that belief, and that he was intoxicated at the time of the incident. The trial judge directed the jury on self-defence and mistake of fact but did not include subjective factors such as intoxication in the document summarising the different ways the defence could be excluded. The appellant further argued that the defence of provocation should have been left to the jury. The Court of Appeal assessed these contentions to determine if the jury was misdirected on these defences.

The central legal issues in this case revolved around whether the jury was misdirected on the defences of self-defence and mistake of fact. Specifically, the court examined whether the trial judge's oral direction on self-defence, which included the term "exclude," adequately conveyed the prosecution's burden to the jury, given that the document provided to the jury did not include the word "exclude." Additionally, the court assessed whether the trial judge properly directed the jury to consider the appellant's intoxication in determining whether there was an honest mistake of fact. The court also examined whether the trial judge erred in ruling that the defence of provocation should not be left to the jury.

The Court of Appeal concluded that the trial judge's directions to the jury were adequate. The court found no error in the trial judge's oral direction regarding self-defence, noting that the omission of the word "exclude" in the document provided to the jury did not lead to a misunderstanding of the prosecution's burden. The court also held that the trial judge's direction on mistake of fact was sufficient, as it did not require the inclusion of subjective factors like intoxication. Finally, the court ruled that the trial judge did not err in deciding that the defence of provocation should not be left to the jury, as there was no basis for a reasonable doubt that the appellant acted under provocation.

ORDERS:
The appeal was dismissed, and the conviction was upheld.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The grounds of this appeal are that the jury was misdirected as to the questions of self-defence and mistake, that his Honour failed to properly direct the jury on the relevance of the appellant’s intoxication and that defences of provocation and the prevention of the repetition of an insult should have been left to the jury.The evidence The incident was captured by closed circuit television cameras in the nightclub. From the footage, the jury was able to see the movements of the appellant and the complainant in the minutes leading up to the assault, as well as the assault itself. There was no sound to the footage, but had there been, it would have been of no assistance, because on all accounts, it was difficult for someone at the scene to hear what was being said by someone else. This occurred in a crowded space, in which some were dancing and many were drinking. The appellant and the complainant did not know each other. The complainant said in evidence that he noticed that the appellant was glaring at him across the room, and said something to him which he, the complainant, did not understand, but which he interpreted as something said angrily. He noticed that the appellant was with a group of males and he asked one of them what “his mate’s deal was”. He said that he recalled being told something by one of the appellant’s group, which made him lean forward to listen to what was being said. The complainant said he asked the appellant what the problem was, and at a point where their heads were touching, the appellant said to him “don’t push your forehead against me”, and then punched him. In cross-examination, he agreed that there had been some interaction between the two of them a minute or so earlier, as the footage confirmed. The appellant had gone to the club with two male friends, one of whom, Mr Bax, gave evidence in the prosecution case. Mr Bax said that there was an unfriendly exchange of words between the appellant and the complainant, lasting about 10 seconds, and that Mr Bax had a conversation with the complainant in order to “mellow things out”. He then tried to do the same with the appellant. He did not give evidence of what was said between the appellant and the complainant, other than that it was a heated exchange. Immediately after the incident, the appellant and his group left the nightclub. Later that night, the police located the appellant nearby and took some photographs of him, showing that he had blood on his shirt and a cut to his right hand. A police officer observed the appellant to then have a dishevelled appearance, with the appearance that “he had a fair bit of alcohol on board and was slurring his speech …”. The appellant did not give or call evidence. His account was before the jury in the form of a recorded interview with police more than two months after the incident. In that interview, the appellant said that he had watched a football game with some friends in the afternoon where he had had “a few beers and a few rums”. That evening, which was a Saturday, he and his friends drank at another place in Noosa, before going to this nightclub at around midnight. During this period he was drinking vodka. He told police that he “wasn’t absolutely plastered” and described his level of intoxication at six on a scale of 10. But, he said, he knew “what was going on”.

Decision

Reasons for decision

For essentially the same reasons, the remaining ground of appeal, namely that the defence of the prevention of the repetition of an insult ought to have been left,[8] cannot be accepted. It should be noted that the appellant’s trial counsel did not ask the judge to put this defence to the jury. But in ruling that the defence of provocation would not be left, his Honour said that although this defence had not been raised, it would follow from his view about provocation that it would be inappropriate to put this defence, and the appellant’s counsel agreed.[9][8]Criminal Code s 270.[9]AR 138 ll 14-19.Conclusion and order None of the grounds of appeal against this conviction is established. I would order that the appeal be dismissed.

Ratio Decidendi

Legal Principle Established

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CITATION:	R v Newbould [2019] QCA 284
PARTIES:	R v NEWBOULD, Steven Michael (appellant)
FILE NO/S:	CA No 143 of 2019 DC No 541 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Maroochydore – Date of Conviction: 16 May 2019 (Cash QC DCJ)
DELIVERED ON:	6 December 2019
DELIVERED AT:	Brisbane
HEARING DATE:	7 August 2019
JUDGES:	Gotterson and Philippides and McMurdo JJA
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – DEFENCE MATTERS – DEFENCE OF PERSONS OR PROPERTY – DIRECTIONS TO JURY – where the appellant was convicted after a trial of an offence of assault occasioning bodily harm – where the appellant was found to have assaulted the complainant by punching him in the face several times at a nightclub – where the trial judge directed the jury orally that the prosecution bore the burden to “exclude” self-defence in the terms outlined in the Benchbook but did not describe that burden in a document provided to the jury that summarised the different ways in which the defence could be excluded – whether the jury may have misunderstood the burden because the word “exclude” was not included in that document – whether the jury was misdirected as to what had to be proved by the prosecution in relation to self-defence CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – IGNORANCE AND MISTAKE OF FACT – where the appellant was convicted after a trial of an offence of assault occasioning bodily harm – where the appellant was found to have assaulted the complainant by punching him in the face several times at a nightclub – where the appellant was intoxicated at the time of the incident – where the appellant’s counsel at trial submitted that the appellant mistakenly believed that he was being or would be assaulted and acted in response to that belief – where the trial judge directed the jury as to a defence of mistake of fact – where that direction did not include an instruction that the jury must take into account subjective factors such as the appellant’s intoxication in deciding whether there was an honest mistake – whether an adequate direction required the trial judge to instruct the jury to take into account the appellant’s intoxication – whether the jury was misdirected as to a mistake of fact CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – PROVOCATION – where the appellant was convicted after a trial of an offence of assault occasioning bodily harm – where the appellant was found to have assaulted the complainant by punching him in the face several times at a nightclub – where the incident was captured on security cameras but the footage lacked audio – where the appellant’s counsel at trial submitted that the defence of provocation should be left to the jury – where that counsel identified the provocative acts as the complainant’s hand movements in the…