R v Newton - [2012] QCA 127

SUPREME COURT OF QUEENSLAND

CITATION:

R v Newton [2012] QCA 127

PARTIES:

R
v
NEWTON, Kenneth Leif
(appellant)

FILE NO/S:

CA No 304 of 2011
DC No 45 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

18 May 2012

DELIVERED AT:

Brisbane

HEARING DATE:

30 March 2012

JUDGES:

Holmes and White JJA and Dalton J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal against conviction dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of one count of grievous bodily harm – where it was not in issue at trial that the appellant caused injuries to the respondent – where the trial judge directed the jury in respect of s 271(1) Criminal Code 1899 (Qld) – where the trial judge did not direct the jury on self-defence under s 271(2) or s 272 of the Code – whether the appellant’s evidence at trial raised the application of s 271(2) or s 272 – where defence counsel did not ask that direction relating to s 271(2) or s 272 be given – whether s 271(2) and s 272 defence was open on the evidence and the trial judge was obliged to direct the jury accordingly – whether the appellant suffered a miscarriage of justice

Criminal Code 1899 (Qld), s 271, s 272, s 668E

R v Bojovic [2000] 2 Qd R 183; [1999] QCA 206, cited
R v Corry [2005] QCA 87, considered
R v Dean [2009] QCA 309, considered
R v Duncan [2006] QCA 46, considered
R v Gray (1998) 98 A Crim R 589; [1998] QCA 41, cited
R v Muratovic [1967] Qd R 15, cited
R v Pangilinan [2001] 1 Qd R 56; [1999] QCA 528, cited
R v Vidler (2000) 110 A Crim R 77; [2000] QCA 63, cited
R v Wilmot (2006) 165 A Crim R 14; [2006] QCA 91, cited
Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645, [1987] HCA 26, cited

COUNSEL:

J Trevino for the appellant
S P Vasta for the respondent

SOLICITORS:

O’Reilly Stevens Bovey Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

HOLMES JA: The appellant appeals against his conviction on one count of grievous bodily harm. The sole ground of appeal is that the trial judge erred in failing to direct the jury on self-defence under s 271(2) and s 272 of the Criminal Code 1899. (A direction was given in respect of s 271(1) of the Code.)

It was not in issue at the trial that the appellant had caused injuries to the complainant, a Mr Hastie, and it was formally admitted that those injuries (a broken jaw, a broken nose and bruising) amounted to grievous bodily harm.…

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 Newton

Details

AGLC: R v Newton [2012] QCA 127
Case: [2012] QCA 127
Decision Date: 18 May 2012

CaseChat Overview and Summary

The appellant in this case was convicted of one count of grievous bodily harm, an offence under the Criminal Code 1899 (Qld). The conviction was brought to the Court of Appeal on the basis that the trial judge misdirected the jury, did not direct the jury, or both, in relation to the defence of self-defence under sections 271(2) and 272 of the Code. The appellant had not contested that they caused injuries to the respondent, but their case was that they acted in self-defence. The appellant claimed that the trial judge should have directed the jury on the issue of self-defence, and that the failure to do so amounted to a miscarriage of justice.

The court considered whether the appellant's evidence raised the defence of self-defence under sections 271(2) and 272, and whether the trial judge was obliged to direct the jury on this issue. The court noted that defence counsel did not ask for a direction relating to self-defence, and that the appellant's evidence did not establish a reasonable basis for the defence. The court held that the trial judge was not obliged to direct the jury on the defence of self-defence, as it was not raised by the appellant's evidence. The court found that there was no miscarriage of justice in the trial judge's failure to direct the jury on the defence of self-defence.

The court dismissed the appeal against the conviction. The appellant's conviction for grievous bodily harm was upheld. The court found that the trial judge did not misdirect the jury, nor was there an obligation on the trial judge to direct the jury on the defence of self-defence. The court held that the appellant did not suffer a miscarriage of justice.

Orders

Orders of the court

Appeal against conviction dismissed.

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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CITATION:	R v Newton [2012] QCA 127
PARTIES:	R v NEWTON, Kenneth Leif (appellant)
FILE NO/S:	CA No 304 of 2011 DC No 45 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	18 May 2012
DELIVERED AT:	Brisbane
HEARING DATE:	30 March 2012
JUDGES:	Holmes and White JJA and Dalton J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal against conviction dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of one count of grievous bodily harm – where it was not in issue at trial that the appellant caused injuries to the respondent – where the trial judge directed the jury in respect of s 271(1) Criminal Code 1899 (Qld) – where the trial judge did not direct the jury on self-defence under s 271(2) or s 272 of the Code – whether the appellant’s evidence at trial raised the application of s 271(2) or s 272 – where defence counsel did not ask that direction relating to s 271(2) or s 272 be given – whether s 271(2) and s 272 defence was open on the evidence and the trial judge was obliged to direct the jury accordingly – whether the appellant suffered a miscarriage of justice Criminal Code 1899 (Qld), s 271, s 272, s 668E R v Bojovic [2000] 2 Qd R 183; [1999] QCA 206, cited R v Corry [2005] QCA 87, considered R v Dean [2009] QCA 309, considered R v Duncan [2006] QCA 46, considered R v Gray (1998) 98 A Crim R 589; [1998] QCA 41, cited R v Muratovic [1967] Qd R 15, cited R v Pangilinan [2001] 1 Qd R 56; [1999] QCA 528, cited R v Vidler (2000) 110 A Crim R 77; [2000] QCA 63, cited R v Wilmot (2006) 165 A Crim R 14; [2006] QCA 91, cited Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645, [1987] HCA 26, cited
COUNSEL:	J Trevino for the appellant S P Vasta for the respondent
SOLICITORS:	O’Reilly Stevens Bovey Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent