R v Speakman - [2024] QCA 164

SUPREME COURT OF QUEENSLAND

CITATION:

R v Speakman [2024] QCA 164

PARTIES:

R
v
SPEAKMAN, Robert Glenn
(applicant/appellant)

FILE NO/S:

CA No 166 of 2023
DC No 173 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)

ORIGINATING COURT:

District Court at Cairns – Date of Conviction: 27 November 2020 (Morzone KC DCJ)

DELIVERED ON:

Date of Orders: 17 July 2024
Date of Publication of Reasons: 6 September 2024

DELIVERED AT:

Brisbane

HEARING DATE:

17 July 2024

JUDGES:

Boddice JA and North and Henry JJ

ORDERS:

Date of Orders: 17 July 2024

1.   Application for time within which to appeal is granted.

2.   Appeal against conviction allowed.

3.   Conviction below set aside.

4.   A new trial is ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the applicant/appellant was convicted of one count of grievous bodily harm – where, at trial, only the defence under s 271(2) of the Criminal Code was included in the question trail provided to the jury – where the jury were not directed to consider the defence under s 271(1) of the Criminal Code – whether a miscarriage of justice was occasioned by the jury not being directed to consider the defence under s 271(1) of the Criminal Code

Criminal Code (Qld), s 271(1)

Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, cited
HCF v The Queen (2023) 97 ALJR 978; [2023] HCA 35, applied
R v Faulkner[2017] QCA 301, cited
R v LBE[2024] QCA 53, followed
R v Prow [1990] 1 Qd R 64, cited
Zhou v The Queen [2021] NSWCCA 278, cited

COUNSEL:

P J Feeney for the applicant/appellant
M A Sheppard and G C Ollason for the respondent

SOLICITORS:

Bernie Carman & Associates for the applicant/appellant
Director of Public Prosecutions (Queensland) for the respondent

BODDICE JA: I agree with North J.
NORTH J: Following a trial in the District Court at Cairns the appellant was convicted by the jury of one count of grievous bodily harm. He sought an extension of time within which to appeal against the conviction.
Following the hearing of his appeal[1] the Court ordered:
1.     The application for time within which to appeal granted;
2.     Appeal against conviction allowed;
3.     Conviction below set aside;
4.     A new trial is ordered;
5.     Reasons to follow.[2]
[1]On 17 July 2024.
[2]Subsequently under the “slip rule” (UCPR 388) on 19 July the Court added a further order granting the appellant bail on his own undertaking.
The following are my reasons for joining in the orders made.
The sole ground of appeal agitated at the hearing was that a miscarriage of justice occurred[3] because the jury was not directed to consider that a defence under s 271(1) of the Code.
[3]See s 668E(1) of the Code.
The Evidence
Both the appellant and complainant resided at a retirement village in Cairns…

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 Speakman

Details

AGLC: R v Speakman [2024] QCA 164
Case: [2024] QCA 164
Decision Date: 17 July 2024

CaseChat Overview and Summary

In the matter of R v Speakman, the appellant was convicted of grievous bodily harm and sought to appeal this conviction. The Court of Appeal considered the single ground of appeal, which was that the jury's consideration of the case was flawed due to a failure to properly direct them on all relevant defences available under the Criminal Code. Specifically, the Court was asked to consider whether the omission of a direction concerning the defence under s 271(1) of the Criminal Code amounted to a miscarriage of justice.

The legal issue before the Court was whether the jury's lack of direction on the defence under s 271(1) constituted a miscarriage of justice. This defence pertains to situations where the accused acted in self-defence. The Court examined the trial record to determine if there was sufficient evidence to warrant the inclusion of this defence in the jury's deliberations.

The Court of Appeal found that the trial judge had not directed the jury to consider the defence under s 271(1) of the Criminal Code, despite evidence suggesting that the appellant may have acted in self-defence. This constituted a significant error as it deprived the jury of the opportunity to consider whether the appellant's actions were justified under the circumstances. The Court concluded that the omission was a substantial procedural error that impacted the fairness of the trial, leading to a miscarriage of justice.

Consequently, the Court allowed the appeal, set aside the conviction, and ordered a new trial. The Court granted the appellant time to appeal and provided clear directives for the new proceedings to ensure that all relevant defences were properly considered by the jury. This decision highlights the importance of comprehensive jury instructions in criminal trials to uphold the principles of justice and fairness.

Orders

Orders of the court

Date of Orders: 17 July 2024

1. Application for time within which to appeal is granted.

2. Appeal against conviction allowed.

3. Conviction below set aside.

4. A new trial is ordered.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The sole ground of appeal agitated at the hearing was that a miscarriage of justice occurred[3] because the jury was not directed to consider that a defence under s 271(1) of the Code.[3]See s 668E(1) of the Code.The Evidence Both the appellant and complainant resided at a retirement village in Cairns and were known to each other. They were both 71 years old at the time of the alleged offence. It was admitted during the trial that the complainant sustained an injury which amounted to grievous bodily harm and evidence was given by a paramedic and a forensic medical officer concerning the complainant’s injuries. The complainant gave evidence that at around 5 pm on the day in question he took his rubbish out from the unit, he heard people talking in the vegetable garden and noticed the appellant. The appellant walked towards the complainant who gave evidence that the appellant appeared aggressive and affected by alcohol. He said the appellant swayed and slurred his speech. The appellant asked the complainant if he wanted to fight and referred to him as “an old cunt”. The complainant turned to leave and the appellant kicked him in the groin and the complainant stumbled backwards. The appellant punched him several times to the mouth and cheek on the left side, the two men were facing when the punches occurred. The complainant fell to the ground and as he attempted to stand up the appellant kicked him multiple times to his ribs on the right side. He also struck him in the head. The complainant said that he was on his back and he struggled to breath, he told the appellant “I’ve had enough. You’re going to kill me”. The appellant stepped back but then kicked the complainant again and eventually the appellant walked about five metres away but as the complainant tried to stand up the appellant returned kicked him several times to the ribs and knocked him to the ground. The appellant walked away and left the complainant lying on the ground. At some point during the altercation the appellant kneed the complainant to his ribs on the right hand side and rubbed his head into the ground. Each time the complainant tried to leave the appellant blocked him or grabbed him by his shirt and continued to assault him. The appellant gave evidence. He said that he’d consumed several alcoholic drinks at a Leagues Club between about 2 pm and 6 pm and he was drunk at the time he began his journey home. He gave evidence that as he neared a generator at the retirement complex he was suddenly grabbed by the hair from behind by the complainant. The complainant grabbed him by the hair with his right hand and punched him to the side of his left eye multiple times with his left hand. The appellant said that he pulled back, faced the complainant and saw that he had some of his hair in his hand. The appellant called the complainant a “bastard” and he tried to punch the complainant but missed. The complainant landed two further punches and grabbed the appellant in a bear hug. The appellant said that he thought he was “a gonna” and he lifted his knee and hit the complainant in the groin and struck him with his left hand to the face at the same time. As a consequence they fell to the ground with the appellant on top of the complainant. The ground where they fell had asphalt surface with a cement edge. The appellant said that the complainant’s ribs may have hit the cement edge when the two fell. As the appellant attempted to get up he fell for a second time on the complainant because he had become entangled in the complainant’s legs. The appellant was unable to put his hands out and the two head butted each other when he fell the second time. After the second fall he rolled off and stood up. The appellant told the complainant to get up as he “was going to have a go.” The complainant told him to “fuck off” so the appellant left.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Speakman [2024] QCA 164
PARTIES:	R v SPEAKMAN, Robert Glenn (applicant/appellant)
FILE NO/S:	CA No 166 of 2023 DC No 173 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Conviction)
ORIGINATING COURT:	District Court at Cairns – Date of Conviction: 27 November 2020 (Morzone KC DCJ)
DELIVERED ON:	Date of Orders: 17 July 2024 Date of Publication of Reasons: 6 September 2024
DELIVERED AT:	Brisbane
HEARING DATE:	17 July 2024
JUDGES:	Boddice JA and North and Henry JJ
ORDERS:	Date of Orders: 17 July 2024 1. Application for time within which to appeal is granted. 2. Appeal against conviction allowed. 3. Conviction below set aside. 4. A new trial is ordered.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the applicant/appellant was convicted of one count of grievous bodily harm – where, at trial, only the defence under s 271(2) of the Criminal Code was included in the question trail provided to the jury – where the jury were not directed to consider the defence under s 271(1) of the Criminal Code – whether a miscarriage of justice was occasioned by the jury not being directed to consider the defence under s 271(1) of the Criminal Code Criminal Code (Qld), s 271(1) Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, cited HCF v The Queen (2023) 97 ALJR 978; [2023] HCA 35, applied R v Faulkner[2017] QCA 301, cited R v LBE[2024] QCA 53, followed R v Prow [1990] 1 Qd R 64, cited Zhou v The Queen [2021] NSWCCA 278, cited
COUNSEL:	P J Feeney for the applicant/appellant M A Sheppard and G C Ollason for the respondent
SOLICITORS:	Bernie Carman & Associates for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent