R v SHERRINGTON, Shaun Michael Mark KUCHLER, Wesley (appellants)
FILE NOS:
CA No 239 of 2000 CA No 245 of 2000 SC No 317 of 2000
DIVISION:
Court of Appeal
PROCEEDING:
Appeals against Conviction
ORIGINATING COURT:
Supreme Court at Townsville
DELIVERED ON:
6 April 2001
DELIVERED AT:
Brisbane
HEARING DATE:
28 February 2001
JUDGES:
McPherson JA, Ambrose and Wilson JJ
ORDER:
In Appeal No 239 of 2000: Appeal dismissed.
In Appeal No 245 of 2000: Appeal dismissed.
CATCHWORDS:
CRIMINAL LAW- GENERAL MATTERS- ANCILLARY LIABILITY- COMPLICITY-AIDER AND ABETTOR- appellants convicted of manslaughter- whether it was open on the evidence for the jury to infer that the fatal blows were inflicted by one or both appellants when they were acting in concert with the common intention of disabling him.
Acts Interpretation Act 1954-1971 (Qld) Criminal Code s 7 (a), (b), and (c), s 293, s 300, s 302(1)(a)
R v Wyles; ex parte Attorney General [1977] QdR 169, discussed
COUNSEL:
A J Rafter for the appellant, Sherrington R F Greenwood QC, with EM Donnelly, for the appellant, Kuchler
P M Ridgeway for the respondent
SOLICITORS:
Legal Aid Queensland for the appellant, Sherrington Wilson Ryan and Gross for the appellant, Kuchler
Director of Public Prosecutions (Queensland) for the respondent
McPHERSON JA: The evidence at the trial is set out in detail in the reasons of Ambrose J which I have had the advantage of reading. Inevitably, the testimony of the 13 or so prosecution witnesses of the fatal struggle was not consistent throughout, but the jury would, on the strength of it have been entitled to make findings leading to verdicts of guilty of manslaughter against each of the appellants. That evidence may be summarised as follows.
John Fotheringham died at about 3 am on Sunday 25 April 1999. His death was caused by a traumatic subarachnoid haemorrhage, which probably resulted from a blow to the neck of at least moderate force. The events leading up to his death can be divided into two episodes. First, there was an incident at 9.30 pm on the preceding Saturday night, in which Fotheringham was, without any justification, punched by the appellant Sherrington. He left the party at 50 Valencia Street, which was the home of the other appellant Kuchler, but returned to the vicinity of the house at about 2.30 am. On this later occasion, he was armed…
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.
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Details
AGLC
R v Sherrington & Kuchler [2001] QCA 105
Case
[2001] QCA 105
Decision Date
CaseChat Overview and Summary
The two appellants, Sherrington and Kuchler, were convicted of manslaughter in the Supreme Court of Queensland and appealed their convictions to the Court of Appeal. The central issue in this appeal was whether the jury was entitled to infer that the fatal blows were delivered by one or both of the appellants when they were acting in concert with a common intention to disable the deceased. The appeal hinged on the interpretation of the relevant sections of the Criminal Code and the principles of complicity and common intention.
The court considered the principles established in previous cases such as R v Barlow, Royall v The Queen, and Warren and Ireland v The Queen, which outline the requirements for establishing complicity in criminal acts. It was necessary to determine if the evidence supported an inference that the appellants, acting in concert, had the common intention to disable the deceased, leading to the infliction of the fatal blows. The court also examined the relevant statutory provisions, particularly sections 7, 293, 300, and 302(1)(a) of the Criminal Code.
The court found that the jury was properly directed on the elements of complicity and common intention. The evidence was sufficient to support the inference that the appellants, acting in concert, had the common intention to disable the deceased, leading to the fatal blows. The appeal was dismissed, affirming the convictions for manslaughter. The court held that the jury's verdict was supported by the evidence, and the appeals were accordingly dismissed.