R v Thompson - [2022] QCA 214

SUPREME COURT OF QUEENSLAND

CITATION:

R v Thompson [2022] QCA 214

PARTIES:

R
v
THOMPSON, Kyle Robert
(appellant)

FILE NO/S:

CA No 98 of 2021
SC No 100 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Townsville – Date of Conviction: 16 April 2021 (Brown J)

DELIVERED ON:

1 November 2022

DELIVERED AT:

Brisbane

HEARING DATE:

31 May 2022

JUDGES:

Mullins P, Dalton JA and Flanagan J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where the appellant was convicted of one count of murder – where it was common ground that the deceased was unlawfully killed by the appellant – where the issue at trial was whether the appellant intended to kill or cause grievous bodily harm to the deceased, and if so, whether the appellant could prove that the defence of provocation applied – where the appellant’s case at trial was that the provocative conduct was an unwanted sexual advance and accompanying words accumulated with a subsequent derogatory remark “sort of homo, like, gay, sort of like joking” in circumstances where he claimed to have been sexually abused for 10 years by the deceased – where the effect of the trial judge’s direction on provocation asked the jury to assess the conduct of the deceased from the viewpoint of the appellant in order to understand the seriousness of the conduct of the deceased from the appellant’s perspective and whether provocative conduct of that seriousness could have caused an ordinary person to lose self-control and act as the appellant did – whether the trial judge erred in directing the jury on the defence of provocation

Criminal Code (Qld), s 304

Green v The Queen (1997) 191 CLR 334; [1997] HCA 50, cited
Masciantonio v The Queen (1995) 183 CLR 58; [1995] HCA 67, cited
R v Miller [2009] 2 Qd R 86; [2009] QCA 11, considered
R v Thompson[2019] QCA 29, related

COUNSEL:

A M Hoare, with P J Wilson and E J Cooper, for the appellant (pro bono)
D L Meredith for the respondent

SOLICITORS:

No appearance for the appellant
Director of Public Prosecutions (Queensland) for the respondent

THE COURT: Mr Thompson appeals against his conviction after trial before a jury of one count of murder. The ground of appeal is that the learned trial judge erred in directing the jury on the defence of provocation in that the jury should have been directed to consider the objective aspect of that defence with Mr Thompson’s subjective features in mind.
The facts
At the commencement of the trial, Mr Thompson pleaded not guilty to murder, but guilty to manslaughter by reason of provocation. The plea of guilty to manslaughter was not accepted by the prosecutor and the trial proceeded.
There were mutual admissions made by the prosecution and on Mr Thompson’s behalf. They included the following. The deceased, Mr Knyvett, was born…

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 Thompson

Details

AGLC: R v Thompson [2022] QCA 214
Case: [2022] QCA 214
Decision Date: 1 November 2022

CaseChat Overview and Summary

In the Supreme Court, the appellant, Thompson, appealed against his conviction of one count of murder. The deceased was unlawfully killed by Thompson, and the issue at trial was whether Thompson intended to kill or cause grievous bodily harm to the deceased, and if so, whether Thompson could prove that the defence of provocation applied. The appellant claimed that the deceased made an unwanted sexual advance and accompanying words, which accumulated with a subsequent derogatory remark, in circumstances where Thompson claimed to have been sexually abused for 10 years by the deceased. The trial judge directed the jury to assess the conduct of the deceased from the viewpoint of the appellant in order to understand the seriousness of the conduct of the deceased from the appellant’s perspective and whether provocative conduct of that seriousness could have caused an ordinary person to lose self-control and act as the appellant did. Thompson argued that the trial judge erred in directing the jury on the defence of provocation.

The court considered whether the trial judge erred in directing the jury on the defence of provocation. The court held that the trial judge did not err in directing the jury on the defence of provocation. The court found that the direction was in accordance with the principles established in the authorities, and the trial judge properly directed the jury to consider whether provocative conduct of that seriousness could have caused an ordinary person to lose self-control and act as the appellant did. The court also found that the trial judge properly directed the jury to consider the effect of the provocative conduct on the appellant, who had a history of sexual abuse by the deceased.

The appeal was dismissed. The court held that the trial judge did not err in directing the jury on the defence of provocation, and the conviction was upheld.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Thompson [2022] QCA 214
PARTIES:	R v THOMPSON, Kyle Robert (appellant)
FILE NO/S:	CA No 98 of 2021 SC No 100 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Townsville – Date of Conviction: 16 April 2021 (Brown J)
DELIVERED ON:	1 November 2022
DELIVERED AT:	Brisbane
HEARING DATE:	31 May 2022
JUDGES:	Mullins P, Dalton JA and Flanagan J
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where the appellant was convicted of one count of murder – where it was common ground that the deceased was unlawfully killed by the appellant – where the issue at trial was whether the appellant intended to kill or cause grievous bodily harm to the deceased, and if so, whether the appellant could prove that the defence of provocation applied – where the appellant’s case at trial was that the provocative conduct was an unwanted sexual advance and accompanying words accumulated with a subsequent derogatory remark “sort of homo, like, gay, sort of like joking” in circumstances where he claimed to have been sexually abused for 10 years by the deceased – where the effect of the trial judge’s direction on provocation asked the jury to assess the conduct of the deceased from the viewpoint of the appellant in order to understand the seriousness of the conduct of the deceased from the appellant’s perspective and whether provocative conduct of that seriousness could have caused an ordinary person to lose self-control and act as the appellant did – whether the trial judge erred in directing the jury on the defence of provocation Criminal Code (Qld), s 304 Green v The Queen (1997) 191 CLR 334; [1997] HCA 50, cited Masciantonio v The Queen (1995) 183 CLR 58; [1995] HCA 67, cited R v Miller [2009] 2 Qd R 86; [2009] QCA 11, considered R v Thompson[2019] QCA 29, related
COUNSEL:	A M Hoare, with P J Wilson and E J Cooper, for the appellant (pro bono) D L Meredith for the respondent
SOLICITORS:	No appearance for the appellant Director of Public Prosecutions (Queensland) for the respondent