R v Seminara - [2002] QCA 131

SUPREME COURT OF QUEENSLAND

CITATION:

R v Seminara [2002] QCA 131

PARTIES:

R
v
SEMINARA, Anthony Wayne

(applicant/appellant)

FILE NO/S:

CA No 23 of 2002

SC No 244 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against conviction

ORIGINATING COURT:

Supreme Court Brisbane

DELIVERED ON:

12 April 2002

DELIVERED AT:

Brisbane

HEARING DATE:

22 March 2002

JUDGES:

McPherson JA, Byrne and Philippides JJ.
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 – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – HOMICIDE –MANSLAUGHTER – OTHER ACTS AND OMISSIONS RESULTING IN DEATH – where a jury were directed that the question was whether the accused was responsible for the victim’s fall ‘by his own deliberate actions’.

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE SUMMING UP – where more witnesses saw accused push the victim down the stairs than did not – whether this is a matter properly taken into account by the jury.

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE SUMMING UP – where the learned trial judge makes reference to ‘an ordinary person, like you and me’ – whether this direction conflicts with what was said in Stingel v The Queen (1990) 171 CLR 312.

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE SUMMING UP – whether the learned trial judge had substituted the ‘reasonable man’ of the civil law of negligence for the ordinary man contemplated by s 23(1)(b) of the Criminal Code (Qld) – where the direction given was consistent with that suggested in R v Taiters.

CRIMINAL LAW – DEFENCE MATTERS – ACCIDENT – EVENT OCCURRING BY ACCIDENT OR CHANCE - whether it is open for the jury to test foreseeability by reference to an ordinary person “like you and me” - where the learned trial judge particularised the mechanism by which the possibility of death my reasonably be expected to eventuate – whether this amounted to a error.

Kaporonovski v The Queen (1973) 133 CLR 209, applied
R v Taiters, ex p Attorney‑General [1997] 1 Qd R 333, applied
Stingel v The Queen (1990) 171 CLR 312, considered
The Queen v Falconer (1990) 171 CLR 30, considered

Criminal Code (Qld), s 23

COUNSEL:

A J Glynn SC for the applicant/appellant
BG Campbell for the respondent

SOLICITORS:

Robertson O’Gorman for the applicant/appellant
Director of Public Prosecutions (Queensland) for the respondent

McPHERSON JA: The appellant was convicted of manslaughter and sentenced to imprisonment for six years. The case is a more than usually tragic one. Both the appellant and deceased were at a licensed surf club at the Gold Coast. The deceased had been drinking at the bar and was intoxicated. He became involved in an argument with staff at the bar and then began offering gratuitous insults to a group of people of whom the appellant was one. He was told to leave the premises but no action was taken to make him go. The appellant decided…

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 Seminara

Details

AGLC: R v Seminara [2002] QCA 131
Case: [2002] QCA 131
Decision Date: 12 April 2002

CaseChat Overview and Summary

The appellant, Seminara, was convicted of manslaughter by a jury in the District Court of Queensland, following an incident where the victim, Mr. D'Amico, was pushed down a flight of stairs, resulting in fatal injuries. The key issue before the court was whether the jury had been properly directed in considering whether the accused's actions were responsible for the victim’s fall. The court also had to determine if the trial judge's summing up, including references to "an ordinary person, like you and me", was consistent with previous case law and statutory provisions.

The central legal questions were whether the trial judge correctly guided the jury in assessing the foreseeability of death from the accused's actions and whether the jury was properly instructed on the meaning of "accident" within the context of manslaughter. Additionally, the court needed to assess whether the trial judge's direction regarding the "ordinary person" conflicted with established legal principles. The court examined whether the trial judge had inadvertently applied the standard of the "reasonable person" from civil law to a criminal context, potentially introducing an erroneous standard.

In its reasoning, the court concluded that the trial judge's directions were consistent with legal precedents, particularly the case of R v Taiters, and did not introduce an erroneous standard of "reasonable person" but rather correctly aligned with the ordinary man contemplated by statute. The court held that the trial judge’s reference to an "ordinary person" was an appropriate way to guide the jury in understanding foreseeability, and that the judge’s direction was not inconsistent with Stingel v The Queen. The court further found that the number of witnesses who observed the accused's actions was properly considered by the jury as part of their overall assessment.

The appeal against the conviction was dismissed. The court upheld the conviction, finding that the trial judge's summing up was consistent with legal precedents and that the jury was properly directed in reaching its verdict. The directions provided to the jury were found to be appropriate, and no miscarriage of justice occurred.

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 Seminara [2002] QCA 131
PARTIES:	R v SEMINARA, Anthony Wayne (applicant/appellant)
FILE NO/S:	CA No 23 of 2002 SC No 244 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against conviction
ORIGINATING COURT:	Supreme Court Brisbane
DELIVERED ON:	12 April 2002
DELIVERED AT:	Brisbane
HEARING DATE:	22 March 2002
JUDGES:	McPherson JA, Byrne and Philippides JJ. 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 – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – HOMICIDE –MANSLAUGHTER – OTHER ACTS AND OMISSIONS RESULTING IN DEATH – where a jury were directed that the question was whether the accused was responsible for the victim’s fall ‘by his own deliberate actions’. CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE SUMMING UP – where more witnesses saw accused push the victim down the stairs than did not – whether this is a matter properly taken into account by the jury. CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE SUMMING UP – where the learned trial judge makes reference to ‘an ordinary person, like you and me’ – whether this direction conflicts with what was said in Stingel v The Queen (1990) 171 CLR 312. CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE SUMMING UP – whether the learned trial judge had substituted the ‘reasonable man’ of the civil law of negligence for the ordinary man contemplated by s 23(1)(b) of the Criminal Code (Qld) – where the direction given was consistent with that suggested in R v Taiters. CRIMINAL LAW – DEFENCE MATTERS – ACCIDENT – EVENT OCCURRING BY ACCIDENT OR CHANCE - whether it is open for the jury to test foreseeability by reference to an ordinary person “like you and me” - where the learned trial judge particularised the mechanism by which the possibility of death my reasonably be expected to eventuate – whether this amounted to a error. Kaporonovski v The Queen (1973) 133 CLR 209, applied R v Taiters, ex p Attorney‑General [1997] 1 Qd R 333, applied Stingel v The Queen (1990) 171 CLR 312, considered The Queen v Falconer (1990) 171 CLR 30, considered Criminal Code (Qld), s 23
COUNSEL:	A J Glynn SC for the applicant/appellant BG Campbell for the respondent
SOLICITORS:	Robertson O’Gorman for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent