R v Ngakyunkwokka

Case [2023] QCA 85

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ngakyunkwokka [2023] QCA 85

PARTIES:

R
v
NGAKYUNKWOKKA, Kyle Peter
(appellant)

FILE NO/S:

CA No 259 of 2021
SC No 79 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Cairns – Date of Conviction: 6 October 2021 (Applegarth J)

DELIVERED ON:

2 May 2023

DELIVERED AT:

Brisbane

HEARING DATE:

9 March 2023

JUDGES:

Morrison and Dalton JJA and Bradley J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of murder – where there was a history of long-term conflict between the deceased’s extended family and the appellant’s extended family – where the appellant stabbed the deceased in a fight – where earlier that day there had been an argument between the deceased’s extended family and the appellant’s extended family and injuries caused to one of the deceased’s relatives by the appellant’s relatives – where the jury had evidence from several witnesses and CCTV footage of the fatal fight – where the appellant gave evidence through an interpreter – where the appellant’s evidence was that he did not intend to kill the deceased – whether the jury’s verdict was unreasonable or cannot be supported by evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IRREGULARITIES IN RELATION TO JURY – CONDUCT OF TRIAL JUDGE – where defence counsel did not rely upon provocation – where the trial judge thought there was a basis for provocation other than words alone and thought this was a jury question – where the trial judge raised provocation with the jury – whether the trial judge erred in raising the defence of provocation to the jury

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IRREGULARITIES IN RELATION TO JURY – CONDUCT OF TRIAL JUDGE – where defence counsel bears the onus of proving the defence of provocation on the balance of probabilities – whether evidence supporting a defence of provocation must be more than weak and tenuous before it becomes incumbent on the trial judge to leave provocation to the jury

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE – GENERAL PRINCIPLES – where the jury asked a question and then informed the trial judge that they no longer required an answer to the question – where the trial judge determined that the need to answer the jury question had passed; did not answer the question, and awaited a verdict – whether a miscarriage of justice was occasioned by the trial judge not answering the jury question

Criminal Code (Qld), s 273, s 304

Bullard v The Queen [1957] AC 635, considered
Lupalupa Sisarowe [1967-68] P & NGLR 455, cited
Mancini v Director of Public Prosecutions [1942] AC 1, considered
Masciantonio v The Queen (1995) 183…

Continue reading R v Ngakyunkwokka

Sign in free to access the full text

Details
AGLC
R v Ngakyunkwokka [2023] QCA 85
Case
[2023] QCA 85
Decision Date

CaseChat Overview and Summary

The case of R v Ngakyunkwokka involved the appellant's appeal against his conviction of murder. The appellant had stabbed the deceased in a fight that arose from a long-standing feud between their respective extended families. The evidence included testimony from several witnesses, CCTV footage of the fatal altercation, and evidence from the pathologist who found a fatal wound consistent with a knife stab. The appeal raised several legal issues, including whether the jury's verdict was unreasonable or unsupported by evidence, whether the trial judge erred in raising the defence of provocation with the jury, and whether the trial judge's decision not to answer a question from the jury constituted a miscarriage of justice.

The court found that the appellant's argument that the jury's verdict was unreasonable or unsupported by evidence failed. The court found that the evidence, including the CCTV footage and witness testimony, supported the jury's verdict. The court also found that the trial judge did not err in raising the defence of provocation with the jury. The court found that the trial judge was entitled to think that there was a basis for provocation other than words alone, and that this was a question for the jury. The court further found that the trial judge's decision not to answer a question from the jury did not occasion a miscarriage of justice.

The court dismissed the appeal, finding that there was no substantial miscarriage of justice. The court found that the evidence supported the jury's verdict, and that the trial judge did not err in raising the defence of provocation with the jury. The court found that the trial judge's decision not to answer a question from the jury did not occasion a miscarriage of justice. The appeal was dismissed, and the conviction of murder stood.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The pathologist who conducted the autopsy gave uncontroversial evidence. He found a wound consistent with a knife wound which left a 2.9 centimetre long wound on the skin surface on the right side of the deceased’s back. The wound continued through the abdominal cavity and had damaged the aorta and vena cava, which lie next to, and slightly in front of the spine. The direction of this wound track was to the left, upwards, and slightly from the back of the body towards the front of the body. The track was about 17 centimetres long – AB 401. The pathologist said it would have required moderate force for a knife to penetrate the skin, but after that, only a mild force would have been necessary to continue the progress of the knife through the deeper tissues. Toxicology showed alcohol in the deceased’s man’s blood, to use the doctor’s words, “in road traffic terms, 0.11”. There was also the active metabolite of cannabis in the deceased man’s blood which showed that there had been ingestion of cannabis in the minutes to hours before the time of death – AB 403-404.Oral Evidence As well as the evidence which I have already described, the jury had evidence from several witnesses to the fatal fight. Some of their evidence was closely consistent with what was evident on the footage. Other parts of the oral evidence were clearly not consistent with what was shown on the CCTV footage. Having regard to the nature of the fight, it is unsurprising that many of the witnesses were related either to the appellant or to the deceased man. The jury might well have thought that the evidence they gave was influenced by their family loyalties, either consciously or unconsciously. Some of the witnesses spoke Wik as their first language and required an interpreter at trial. The CCTV did not record any sound, but it is of relatively good quality and I think the jury would have been well‑entitled to regard it as accurate and informative and judge the credibility of the oral evidence against it. Leonard Woolla gave evidence that after he was assaulted with the bottle, he went home, but then returned to the appellant’s families’ houses with some others, including his brother Austin, and told his assailant that he should have a fight with Austin. He had a hammer and a metal bar with him. He also took an empty rum bottle to use as a weapon. The assailant did not want to fight with anyone, but Leonard Woolla had a fight with him without weapons, just with his fists. Then the police arrived. He thought this was about 1.30 pm. He had been drinking since 9.30 am that morning; he had drunk a bottle of rum which he shared with two others. Austin Woolla was angry when he was told about Leonard Woolla’s being hit on the head. Austin accompanied him because Leonard asked Austin to come back and fight with the assailant. Austin was a good fighter. He had been in lots of fights around Aurukun. Austin had been drinking that day. Leonard Woolla Jnr said that after Leonard Snr had been hit he became angry and went to get his brother, Austin, and they all went back to the assailant’s address, “They were asking for a fair fight” – AB 343. They went with at least two other men. His evidence was that a fair fight meant a fist fight, “knuckle-for-knuckle” – AB 347. If there were two fellows fighting in a fist fight, no relatives would join in, but if weapons were involved, others would join in, “because we don’t like to see our families get injured. It gets us angry.” – AB 348. He denied that Leonard Snr was calling for the assailant to come out and fight with Austin.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.