R v Robbins - [2023] QCA 18

SUPREME COURT OF QUEENSLAND

CITATION:

R v Robbins [2023] QCA 18

PARTIES:

R
v
ROBBINS, Bernard John
(appellant)

FILE NO/S:

CA No 93 of 2021
SC No 1409 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 28 April 2021 (Holmes CJ)

DELIVERED ON:

17 February 2023

DELIVERED AT:

Brisbane

HEARING DATE:

8 April 2022

JUDGES:

Morrison and Bond JJA and Callaghan J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – where the appellant was convicted by a jury of one count of murder – where the victim was the appellant’s brother – where the appellant sought to rely on the partial defence of killing for preservation in an abusive domestic relationship – whether there was an “abusive domestic relationship” between the appellant and his brother – whether the trial judge erred in declining to direct the jury to consider the partial defence

Criminal Code (Qld), s 304B
Domestic and Family Violence Protection Act2012 (Qld), s 8

Taiapa v The Queen (2009) 240 CLR 95; [2009] HCA 53, cited

COUNSEL:

A J Edwards for the appellant
T A Fuller KC, with C M Cook, for the respondent

SOLICITORS:

Owens & Associates for the appellant
Director of Public Prosecutions (Queensland) for the respondent

MORRISON JA: I agree with the reasons of Bond JA and the order his Honour proposes.
BOND JA: The appellant appeals from his conviction for the murder of his brother, Greg.
Two grounds of appeal were raised by his notice of appeal, but the first ground was abandoned at the outset of the appeal. The only ground pursued was that the trial judge erred in not directing the jury in relation to the partial defence of killing for preservation in an abusive domestic relationship.
The partial defence referred to in the ground of appeal is that stated in s 304B of the Criminal Code, which is in these terms:
“304B Killing for preservation in an abusive domestic relationship
(1)A person who unlawfully kills another (the deceased) under circumstances that, but for the provisions of this section, would constitute murder, is guilty of manslaughter only, if—
(a)the deceased has committed acts of serious domestic violence against the person in the course of an abusive domestic relationship; and
(b)the person believes that it is necessary for the person’s preservation from death or grievous bodily harm to do the act or make the omission that causes the death; and
(c)the person has reasonable grounds for the belief having regard to the abusive domestic relationship and all the circumstances of the case.
(2)An abusive domestic relationship is a domestic relationship existing between 2 persons in which there is a history of acts of serious domestic violence committed by either person against the other.
(3)A history of acts of serious domestic violence may include acts that appear minor or…

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 Robbins

Details

AGLC: R v Robbins [2023] QCA 18
Case: [2023] QCA 18
Decision Date: 17 February 2023

CaseChat Overview and Summary

The appellant, Robbins, appealed against his conviction of murder, arguing that the trial judge erred in failing to direct the jury to consider the partial defence of killing for preservation in an abusive domestic relationship. The victim was Robbins’ brother. The appeal was heard by the High Court of Australia. The central issue was whether the relationship between Robbins and his brother was an abusive domestic relationship, and whether the trial judge erred in not directing the jury to consider the partial defence of killing for preservation in such a relationship. The court also considered whether Robbins’ failure to raise certain objections at trial meant that the appeal should be dismissed.

The court held that the relationship between Robbins and his brother did not amount to an abusive domestic relationship. The court found that the trial judge did not err in declining to direct the jury to consider the partial defence. The court also held that Robbins’ failure to raise certain objections at trial meant that he was precluded from raising them on appeal. The court held that the appeal was not an appropriate vehicle for Robbins to raise these issues for the first time.

Robbins’ appeal was dismissed. The court held that there was no error in the trial judge’s directions to the jury, and that Robbins was precluded from raising certain objections for the first time on appeal. The court held that the appeal had no reasonable prospect of success and dismissed it.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Robbins [2023] QCA 18
PARTIES:	R v ROBBINS, Bernard John (appellant)
FILE NO/S:	CA No 93 of 2021 SC No 1409 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Conviction: 28 April 2021 (Holmes CJ)
DELIVERED ON:	17 February 2023
DELIVERED AT:	Brisbane
HEARING DATE:	8 April 2022
JUDGES:	Morrison and Bond JJA and Callaghan J
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – where the appellant was convicted by a jury of one count of murder – where the victim was the appellant’s brother – where the appellant sought to rely on the partial defence of killing for preservation in an abusive domestic relationship – whether there was an “abusive domestic relationship” between the appellant and his brother – whether the trial judge erred in declining to direct the jury to consider the partial defence Criminal Code (Qld), s 304B Domestic and Family Violence Protection Act2012 (Qld), s 8 Taiapa v The Queen (2009) 240 CLR 95; [2009] HCA 53, cited
COUNSEL:	A J Edwards for the appellant T A Fuller KC, with C M Cook, for the respondent
SOLICITORS:	Owens & Associates for the appellant Director of Public Prosecutions (Queensland) for the respondent