R v Pollock

Case [2008] QCA 205

SUPREME COURT OF QUEENSLAND

CITATION:

R v Pollock [2008] QCA 205

PARTIES:

R
v
POLLOCK, Andrew Murray
(appellant)

FILE NO/S:

CA No 315 of 2006
SC No 1037 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

25 July 2008

DELIVERED AT:

Brisbane

HEARING DATE:

10 April 2008

JUDGES:

McMurdo P, Fryberg and Lyons JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeal against conviction allowed
2. Conviction set aside and a new trial ordered

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR UNSUPPORTABLE VERDICT – appeal against conviction of murder – jury satisfied the killing was unprovoked – whether it was open to the jury, on the evidence, to be satisfied beyond a reasonable doubt that the killing was unprovoked

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR WHICH MISCARRIAGE NOT SUBSTANTIAL – MISDIRECTION AND NON-DIRECTION – GENERALLY – the prosecutor, in his closing address, conveyed personal opinions; speculated that the appellant had kicked the deceased; discussed material not in evidence; mis-stated witness’s evidence – directions given by the trial judge in response to the prosecutor’s closing address – whether prosecutor’s closing address caused a miscarriage of justice

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 – judge identified that the central question was whether the appellant was guilty of murder or manslaughter – judge made it clear that the elements of provocation had to be negatived by the prosecution – judge indicated that jury needed to be satisfied that the appellant had said to a witness what she attributed to him about the incident and that what he said was true – parts of summing up had a tendency to create a false impression in the jury’s mind in relation to the prosecution’s duty to exclude the defence of provocation – judge emphasised physical means of killing – whether miscarriage of justice occurred due to judge’s summing up

Criminal Code 1899 (Qld), s 304, s 668E(1A)

Burns v The Queen (1975) 132 CLR 258, [1975] HCA 21, cited
Holmes v Director of Public Prosecutions [1946] 2 All ER 124; [1946] AC 588, cited
Johnson v The Queen (1976) 136 CLR 619; [1976] HCA 44, cited
Livermore v The Queen (2006) 67 NSWLR 659; [2006] NSWCCA 334, cited
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied
Masciantonio v The Queen (1995) 183 CLR 58; [1995] HCA 67, applied
Peacock v The King (1911) 13 CLR 619, [1911] HCA 66, cited
R v Puddick (1865) 176…

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Details
AGLC
R v Pollock [2008] QCA 205
Case
[2008] QCA 205
Decision Date

CaseChat Overview and Summary

The appellant, Pollock, was convicted of murder in the Supreme Court of New South Wales and appealed against the conviction on several grounds. The primary contention was whether it was open to the jury to be satisfied beyond a reasonable doubt that the killing was unprovoked. Additionally, the appellant argued that prosecutorial misconduct and judicial misdirection contributed to a miscarriage of justice.

The appeal centred on whether the jury was properly directed and whether prosecutorial misconduct had influenced the verdict. The court examined whether the prosecutor's closing address, which included personal opinions, speculation, and misstatements, caused a miscarriage of justice. Furthermore, the appeal questioned whether the trial judge's summing up contained misdirections that might have misled the jury regarding the prosecution's duty to exclude the defence of provocation.

In allowing the appeal, the court found that the prosecutor's closing address did indeed contain significant errors and personal opinions that could have influenced the jury's decision. Additionally, the court determined that certain parts of the summing up by the trial judge had a tendency to mislead the jury, particularly concerning the prosecution's burden to exclude the defence of provocation. The court concluded that these factors, taken together, resulted in a miscarriage of justice.

The final orders of the court were to allow the appeal against the conviction, set aside the conviction, and order a new trial for the appellant.

Orders

Orders of the court

1. Appeal against conviction allowed

2. Conviction set aside and a new trial ordered

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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