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 2021DIVISION:
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…
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- AGLC
- R v Ngakyunkwokka [2023] QCA 85
- Case
- [2023] QCA 85
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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