R v Shields

Case [2022] QCA 51

SUPREME COURT OF QUEENSLAND

CITATION:

R v Shields [2022] QCA 51

PARTIES:

R
v
SHIELDS, Daniel John
(appellant)

FILE NO/S:

CA No 71 of 2021
SC No 50 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Rockhampton – Date of Conviction: 27 November 2020 (Crow J)

DELIVERED ON:

Date of Orders: 23 November 2021
Date of Publication of Reasons: 12 April 2022

DELIVERED AT:

Brisbane

HEARING DATE:

23 November 2021

JUDGES:

Fraser and Morrison and McMurdo JJA

ORDERS:

Orders delivered: 23 November 2021

1.    Appeal is allowed.

2.    Re-trial is ordered.

CATCHWORDS:

APPEAL AND NEW TRIAL – NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted after a trial of one count of attempted murder – where the complainant gave evidence that the appellant stabbed him with a machete – where the appellant gave evidence in his defence that he was acting in self-defence – where the learned trial judge directed the jury that self-defence may arise but only if the jury accepted the appellant’s evidence as being truthful and reliable – whether the learned trial judge misdirected the jury that the defence of self-defence need only be considered if they accepted the evidence of the appellant as truthful and reliable

APPEAL AND NEW TRIAL – NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – where the learned trial judge did not direct the jury as to the meaning of assault in the context of the defences under both sections 271(2) and 272 of the Criminal Code (Qld) – where the learned trial judge directed the jury in relation to provocation – whether the directions by the learned trial judge in relation to the definition of grievous bodily harm had the possibility of confusing the jury – whether the learned trial judge failed to adequately direct the jury in relation to the defence of self-defence under s 271(2) and s 272 of the Criminal Code (Qld)

APPEAL AND NEW TRIAL – NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – whether the learned trial judge failed to adequately direct the jury on the use that could be made of prior acts of discreditable conduct by the appellant, and the need to avoid propensity reasoning

Criminal Code (Qld), s 271(2), s 272

R v Young (2004) 142 A Crim R 571; [2004] QCA 84, considered

COUNSEL:

C J Eberhardt for the appellant
D Nardone for the respondent

SOLICITORS:

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

  1. FRASER JA:  I agree with Morrison JA.

  2. MORRISON JA:  The appellant was convicted after a trial of one count of attempted murder.  He appealed that conviction on three grounds based on misdirections by the learned trial judge in the course of the summing up.

  3. The grounds of appeal were that a miscarriage of justice occurred…

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AGLC
R v Shields [2022] QCA 51
Case
[2022] QCA 51
Decision Date

CaseChat Overview and Summary

In the case of R v Shields, the appellant was convicted of one count of attempted murder, following a trial where the complainant testified that the appellant stabbed him with a machete. The appellant claimed self-defence in his testimony, which the trial judge directed the jury to consider only if they found the appellant's evidence truthful and reliable. The legal issues before the court were whether the trial judge misdirected the jury on the applicability of self-defence and whether the judge failed to adequately instruct the jury on the relevant legal definitions and the use of prior acts of discreditable conduct by the appellant. The court found that the trial judge's directions to the jury were inadequate, particularly in relation to the definition of assault and the defence of self-defence, and that the judge's instructions had the potential to confuse the jury. The court also found that the trial judge did not adequately direct the jury on how to consider the appellant's prior acts of discreditable conduct. Consequently, the appeal was allowed, and a re-trial was ordered.

Orders

Orders of the court

Orders delivered: 23 November 2021

1. Appeal is allowed.

2. Re-trial is ordered.

Background

Background to the litigation

An application seeking leave to appeal against sentence was abandoned.Background The appellant commenced a relationship in 2011 with the complainant’s former girlfriend.[1] Prior to the offending the subject of this appeal, the appellant and the complainant had been involved in hostile interactions, some of which resulted in each of them being charged with offences against the other.[1]To whom I shall refer as “M”. The appellant and complainant gave two different versions of events of what occurred. The similarities between the two versions were that the appellant went to M’s house on 6 February 2019, where an altercation between the appellant and complainant occurred. Both the appellant and complainant suffered injuries as a result.The complainant’s evidence The complainant gave evidence that while at M’s house he heard wheelie bins being thrown and someone yelling outside.[2] The complainant came outside and saw the appellant,[3] who was not then armed.[4] The appellant was yelling that the complainant had ruined his life.[5][2]AB 161 lines 42 to 44.[3]AB 162 line 4.[4]AB 176 lines 10 to 18.[5]AB 162 line 7. The complainant told the appellant to “fuck off”.[6] The appellant turned and walked towards his car, and the complainant turned back towards his house.[7][6]AB 162 line 22.[7]AB 162 lines 7 to 10. The complainant heard the appellant running up from behind him, and he was struck in the back of the head.[8] The complainant turned around to see the appellant “stabbing at [his] underarm” with a machete.[9] The complainant picked up a nearby length of timber to block the machete.[10] A fight ensued with each man swinging his weapon at the other. In the struggle, the complainant suffered a stab wound to the left armpit from the machete,[11] and the appellant suffered a cut to his arm.[12][8]AB 162 lines 32 to 35.[9]AB 163 lines 20 to 25.[10]AB 163 line 27 to AB 165 line 31.[11]AB 206 line 9; AB 212 line 4; AB 213 line 40.[12]AB lines 5 to 6. The complainant grabbed the appellant’s arm and hand, and “laid straight down on top of the machete” to stop the appellant from getting it.[13] While the complainant was lying on the machete, the appellant was saying, “Give me the knife. I’m going to finish you off”.[14][13]AB 166 lines 1 to 15.[14]AB 166 lines 17 to 18. The complainant saw his son came out from the door of the house.[15] The appellant left,[16] and the complainant received assistance from a neighbour who called an ambulance.[17][15]AB 166 line 26.[16]AB 166 line 27 and lines 40 to 41.[17]AB 166 line 37 to AB 167 line 8. The Crown case was that the appellant put some of the items in his car with the intention of using them as weapons against the complainant,[18] and that he parked up the road from the house so not to alert the complainant of his presence.[19] Ultimately the Crown case was that the appellant’s attempt to murder the complainant was frustrated by the complainant lying on the machete.[20][18]AB 318 lines 1 to 16; AB 319 lines 14 to 23.[19]AB 62 lines 21 to 24.[20]AB 25 lines 45 to 47; AB 95 line 44 to AB 96 line 3.The appellant’s evidence

Evidence

Evidence Before The Court

The Crown case was that the appellant put some of the items in his car with the intention of using them as weapons against the complainant,[18] and that he parked up the road from the house so not to alert the complainant of his presence.[19] Ultimately the Crown case was that the appellant’s attempt to murder the complainant was frustrated by the complainant lying on the machete.[20][18]AB 318 lines 1 to 16; AB 319 lines 14 to 23.[19]AB 62 lines 21 to 24.[20]AB 25 lines 45 to 47; AB 95 line 44 to AB 96 line 3.The appellant’s evidence The appellant gave evidence. He said that about three hours before the offence M told him that she had been unfaithful to him with the complainant.[21] M then left the appellant’s house. The appellant put boxes of M’s belongings on the verandah.[21]AB 301 line 24 to AB 302 line 18. The appellant said that he went to the complainant’s house to tell M to collect the boxes that were on the verandah of his house.[22] He parked on the road,[23] and threw a wheelie bin to the side as he “pretty hurriedly” entered the property.[24] He was then unarmed.[22]AB 278 line 36 to AB 279 line 19; AB 279 line 15 to line 19.[23]AB 279 line 22.[24]AB 279 lines 24 and 47. The complainant ran towards him and said, “What are you fucking doing here, you fucking cunt?”, to which the appellant replied, “I am sick of you ruining my life”.[25] The complainant then picked up a lump of wood and started to “swing … [and] jab” it at him.[26][25]AB 280 lines 38 to 44.[26]AB 281 lines 13 to 45. The complainant followed the appellant back to his car,[27] using the wood to “jab [him] through the door”.[28] The appellant swore that he was “pretty scared” that the complainant was going to “smash his face in”, “smash all his teeth out” and “smash” his nose and eyes.[29][27]AB 282 lines 45 to 46.[28]AB 283 line 14.[29]AB 285 lines 1 to 19. The appellant “grabbed something hard” from the back of his car.[30] The item was a machete, though unintentionally selected.[31] The appellant was “scared as fuck”.[32][30]AB 285 lines 26 to line 42.[31]AB 285 lines 25 to 34, line 42.[32]AB 286 lines 16 to 22. The appellant moved the complainant back to his driveway by swinging the machete.[33][33]AB 287 lines 34 to 38. He said that he “blacked out for a second or two”,[34] and then was “laying on top of [the complainant]” who was face down.[35] The complainant said, “Let’s leave it and let’s stop this”,[36] and the appellant walked to his car and drove to the ambulance station.[37][34]AB 288 line 40.[35]AB 289 line 8; AB 289 line 20.[36]AB 290 line 35.[37]AB 291 line 1. The appellant said that some of the weapons alleged by the Crown were tools he had earlier moved into his car for the purpose of relocating them to his mother’s house,[38] or had been in his car for a number of years.[39] He swore that he did not take them for any violent purpose.[40][38]AB 277 line 27.[39]AB 275 line 31 to AB 277 line 35.[40]AB 318 line 1, lines 15 to 16.Ground 1

Decision

Reasons for decision

Those directions were in standard form and adequately delivered a warning against propensity reasoning. It was not, in my view, necessary for the learned trial judge to go further and, as contended,[88] instruct the jury how their evaluation of evidence should take those matters into account.[88]Appeal Transcript T1-11 line 40.Conclusion For the reasons above, I joined in the orders made on 23 November 2021 allowing the appeal and ordering a re-trial. McMURDO JA: Save in one respect, the reasons given by Morrison JA accord with my reasons for joining in the orders which were made on 23 November 2021, allowing the appeal against conviction and ordering a re-trial. The exception is the appellant’s ground that the jury should not have been directed to consider self-defence under s 272 of the Code, because the evidence did not raise the possibility that the appellant acted in defence against an attack by the complainant which the appellant had provoked. If the jury rejected the appellant’s evidence, and also accepted the complainant’s evidence, no question of self-defence arose. Only if the jury accepted the appellant’s evidence, or at least was not persuaded to reject it, did self-defence arise. In that event, the prosecution’s argument was that the assault upon the appellant, as the appellant described in his evidence, was one which he had provoked, with the consequence that it was s 272, and not s 271(2), which applied. The provocation was said to have been the acts of the appellant walking up to the complainant’s house, saying that the complainant had ruined his life and turning over a wheelie bin. On the appellant’s evidence, he was then unarmed, and he said “I am sick of you ruining my life” only in response to the complainant saying to him:“What are you fucking doing here, you fucking cunt?” In my view the jury could not have reasonably considered that these acts and words of the appellant constituted any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, to deprive that person of the power of self-control, and to induce him to assault the appellant. The background of acrimony between the two men did not, in my view, make a difference. Consequently, for the reasons given by Morrison JA, as well as for the additional reason that the jury should not have been directed in the terms of s 272, I joined in the orders which were made.

Ratio Decidendi

Legal Principle Established

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