R v Sherry - [2006] QCA 12

SUPREME COURT OF QUEENSLAND

CITATION:

R v Sherry [2006] QCA 12

PARTIES:

R
v
SHERRY, Sean Peter
(appellant)

FILE NO/S:

CA No 246 of 2005
CA No 247 of 2005
SC No 95 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED EX TEMPORE ON:

6 February 2006

DELIVERED AT:

Brisbane

HEARING DATE:

6 February 2006

JUDGES:

McMurdo P, Keane JA and Muir J
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 and verdict of guilty of manslaughter set       aside
3.    New trial ordered

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NONDIRECTION – GENERAL PRINCIPLES - where appellant convicted of manslaughter and sentenced to eight years' imprisonment - where appellant's defence at trial based solely on causation and accident – where appellant's counsel did not raise issue of self-defence at trial – where appellant claims that trial judge erred in not making available to jury the appellant's claim of self-defence pursuant to s 271 and/or s 272 Criminal Code 1899 (Qld) - whether trial judge's omission to explain issue of self-defence for jury's consideration deprived appellant of a fair trial

Criminal Code 1899 (Qld), s 271, s 272, s 668E(1A)

Howe v R (1980) 32 ALR 478, cited
R v Cowan [2005] QCA 424; CA No 86 of 2005, 18 November 2005, cited
Van Den Hoek v The Queen (1986) 161 CLR 158, cited

Weiss v The Queen [2005] HCA 81, 15 December 2005, cited

COUNSEL:

J R Hunter for the appellant
M J Copley for the respondent

SOLICITORS:

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

THE PRESIDENT: The appellant was convicted in the Supreme Court at Cairns on 15 April 2005 of manslaughter. On 26 August 2005, following the preparation of a pre-sentence report, he was sentenced to eight years' imprisonment and was declared to be convicted of a serious violent offence. He has appealed against his conviction and applied for leave to appeal against his sentence. He has today amended his notice of appeal against conviction to substitute the following ground: "the learned trial judge erred in failing to leave self-defence pursuant to ss 271 and/or 272 of the Criminal Code for the consideration of the jury."

The appellant and the deceased were neighbours. The deceased was found in his shower just before midnight on Christmas night 2003; he died of head injuries. Evidence at trial from the appellant's girlfriend, Molly Goldie, was that the appellant's dogs and the deceased's cat were a source of friction between the appellant and the deceased. A mutual acquaintance, Tina Healy, had heard the deceased say words to the effect that the appellant "had better watch his step or that he", the deceased, "would…

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 Sherry

Details

AGLC: R v Sherry [2006] QCA 12
Case: [2006] QCA 12
Decision Date: 6 February 2006

CaseChat Overview and Summary

Sherry was convicted of manslaughter and sentenced to eight years' imprisonment. He appealed against his conviction, arguing that the trial judge had erred in not making available to the jury his claim of self-defence. Sherry's defence at trial was based solely on causation and accident, and his counsel did not raise the issue of self-defence. Sherry claimed that the trial judge's omission to explain the issue of self-defence for the jury's consideration deprived him of a fair trial.

The legal issue the court had to decide was whether the trial judge's failure to instruct the jury on the issue of self-defence deprived Sherry of a fair trial. The court noted that the trial judge's failure to direct the jury on the issue of self-defence was a significant omission, as the evidence of self-defence was substantial and the jury could have accepted it as a defence. The court held that the trial judge's omission to direct the jury on the issue of self-defence deprived Sherry of a fair trial, as it was a fundamental error that went to the heart of the case.

Accordingly, the court allowed the appeal against conviction, set aside the conviction and verdict of guilty of manslaughter, and ordered a new trial. The court held that the trial judge's failure to direct the jury on the issue of self-defence was a significant error that deprived Sherry of a fair trial, and that a new trial was the appropriate remedy. The court did not speculate on the outcome of the new trial, but held that the appellant was entitled to a fair trial, and that the failure to direct the jury on the issue of self-defence deprived him of that right.

Orders

Orders of the court

1. Appeal against conviction allowed

2. Conviction and verdict of guilty of manslaughter set aside

3. 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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CITATION:	R v Sherry [2006] QCA 12
PARTIES:	R v SHERRY, Sean Peter (appellant)
FILE NO/S:	CA No 246 of 2005 CA No 247 of 2005 SC No 95 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED EX TEMPORE ON:	6 February 2006
DELIVERED AT:	Brisbane
HEARING DATE:	6 February 2006
JUDGES:	McMurdo P, Keane JA and Muir J 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 and verdict of guilty of manslaughter set aside 3. New trial ordered
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NONDIRECTION – GENERAL PRINCIPLES - where appellant convicted of manslaughter and sentenced to eight years' imprisonment - where appellant's defence at trial based solely on causation and accident – where appellant's counsel did not raise issue of self-defence at trial – where appellant claims that trial judge erred in not making available to jury the appellant's claim of self-defence pursuant to s 271 and/or s 272 Criminal Code 1899 (Qld) - whether trial judge's omission to explain issue of self-defence for jury's consideration deprived appellant of a fair trial Criminal Code 1899 (Qld), s 271, s 272, s 668E(1A) Howe v R (1980) 32 ALR 478, cited R v Cowan [2005] QCA 424; CA No 86 of 2005, 18 November 2005, cited Van Den Hoek v The Queen (1986) 161 CLR 158, cited Weiss v The Queen [2005] HCA 81, 15 December 2005, cited
COUNSEL:	J R Hunter for the appellant M J Copley for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent