R v Sharpley

[2011] QCA 124

SUPREME COURT OF QUEENSLAND

CITATION:

R v Sharpley [2011] QCA 124

PARTIES:

R
v
SHARPLEY, Robert John
(appellant)

FILE NO/S:

CA No 268 of 2010
SC No 25 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Toowoomba

DELIVERED ON:

14 June 2011

DELIVERED AT:

Brisbane

HEARING DATE:

1 June 2011

JUDGES:

Chesterman and White JJA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Appeal is allowed;

2.   The conviction is set aside and a verdict of acquittal is entered instead.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where the appellant was convicted of unlawfully killing a man – where the appellant appeals against his conviction on the grounds that it was not open to the jury to exclude self defence and that the verdict was unsupported by the evidence and/or unreasonable – where the appellant and deceased were involved in a scuffle – where the cause of death could not be determined upon a post mortem examination – where there was no weapon used by either the appellant or deceased – where there was no evidence that the appellant continued to use force after he had successfully extricated himself from the deceased’s grasp – whether the jury could have been satisfied beyond reasonable doubt of the appellant’s guilt

Criminal Code 1899 (Qld), s 271(1), s 293

Humphries v The King [1943] St R Qd 156, considered
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied
R v Sherrington & Kuchler [2001] QCA 105, applied
Royall v The Queen (1990) 172 CLR 378; [1991] HCA 27, applied

COUNSEL:

PJ Davis SC, with A Katsikalis, for the appellant
M J Copley SC for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

[1]      CHESTERMAN JA:  After a three day trial the appellant was, on 3 November 2010, convicted of unlawfully killing John Campbell at Toowoomba on 30 May 2009.  He has appealed against his conviction on a number of grounds raised by an Amended Notice of Appeal.  It is only necessary to mention two of those grounds because if they are made out, as in my opinion they are, the conviction must be set aside. 

[2]      The grounds are that: 

(i)          It was not open to the jury to exclude self defence;

(ii)        The verdict was unsupported by the evidence and/or was unreasonable.

[3]      The deceased died sometime between 4.00 am and 6.00 am on Saturday morning 30 May 2009.  The cause of death could not be determined on a post mortem examination, a fact relevant to the second ground of appeal.  The only evidence of the circumstances in which the deceased died came from accounts given by the appellant.  In short he said that he and the deceased had been…