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 take him on".  After the appellant had been charged with murder he told Ms Goldie that the deceased "took a swing at me and I pushed him off."  Later the appellant sent her a letter in which he also stated that the deceased assaulted him and he retaliated by kicking his leg. 

After initially denying any involvement in the offence, the appellant told police on 26 December 2003:

"I think I'm responsible for the death of the deceased. We'd been drinking and I was informed by one of my neighbours that the deceased thinks he can take me out any time he is ready and I went over there and confronted him with the fact.  He had a go at me, I had a go at him.  He's gone to kick me and I've put one of my legs behind his leg he was standing on, swept it, as they say, pulled it out from underneath him and he hit the tiled floor and as far as I knew when he hit the floor and went 'Oh fuck', that's what he said, and at that point I left."

Later in the interview the appellant provided a further detailed explanation of his actions which raised the issue of self-defence under the Criminal Code.  

The appellant gave evidence at trial broadly consistent with his statement to police.  

The appellant's defence as it was conducted at trial was based solely on causation and accident not self-defence. 

In discussion with counsel in the absence of the jury, at the close of the Crown case, after refusing defence counsel Mr Sumner-Potts' submission of no case to answer, the learned primary judge asked whether any defences apart from accident were raised.  The Prosecutor, Mr Priestley, stated "not in my view."  Defence counsel did not demur nor did he seek directions nor redirections on self-defence. 

Where, as here, there is evidence reasonably capable of raising the issue of self-defence under the Criminal Code, it is the trial judge's duty to explain that issue for the jury's consideration, even if this is not requested by defence counsel:  Howe v R (1980) 32 ALR 478 at 482, Van Den Hoek v The Queen (1986) 161 CLR 158, 161 to 162, and R v Cowan [2005] QCA 424, CA No 86 of 2005, 18 November 2005, [21].

Mr M J Copley, who appears on behalf of the respondent, in his customary even-handed manner concedes that self-defence was raised on the evidence at trial and that the judge's omission to leave self-defence as an issue for the jury's consideration deprived the appellant of a fair trial. He further concedes that this is not an appropriate case for the use of the proviso under section 668E (1A) Criminal Code: Weiss v The Queen [2005] HCA 81, [41] and [44]. That concession is rightly made and accords with the authorities cited earlier in these reasons.

It follows that the appeal against conviction must be allowed and the application for leave to appeal against sentence becomes otiose.

KEANE JA:  I agree.

MUIR J:  I agree.

THE PRESIDENT:  The appeal against conviction is allowed.  The conviction and verdict of guilty of manslaughter are set aside and a new trial is ordered.

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