R v Thompson

Case [2019] QCA 29

SUPREME COURT OF QUEENSLAND

CITATION:

R v Thompson [2019] QCA 29

PARTIES:

R
v
THOMPSON, Kyle Robert
(appellant)

FILE NO/S:

CA No 94 of 2018
SC No 100 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Townsville – Date of Conviction: 19 March 2018 (North J)

DELIVERED ON:

26 February 2019

DELIVERED AT:

Brisbane

HEARING DATE:

13 February 2019

JUDGES:

Holmes CJ and Philippides and McMurdo JJA

ORDERS:

1.   Allow the appeal.

2.   Quash the appellant’s conviction.

3.   The appellant be re-tried.

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST CONVICTION – APPLICATION OF PROVISO – where appellant convicted of murder – where appellant submitted at trial that the killing was the result of sudden provocation in the form of an unwanted sexual advance – where s 304 Criminal Code (Qld) as amended by the Criminal Law Amendment Act 2017 (Qld) did not apply – where the primary judge erred by misdirecting the jury to apply s 304 Criminal Code (Qld) as amended by the Criminal Law Amendment Act 2017 (Qld) – whether ‘no substantial miscarriage of justice has actually occurred’ – whether there was a substantial miscarriage of justice whether or not, in the Court’s view, the appellant was guilty of the offence of which he was convicted – whether operation of the proviso precluded

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where appellant convicted of murder – where appellant submitted at trial that the killing was the result of sudden provocation in the form of an unwanted sexual advance – where s 304 Criminal Code (Qld) as amended by the Criminal Law Amendment Act 2017 (Qld) did not apply – where the primary judge erred by misdirecting the jury to apply s 304 Criminal Code (Qld) as amended by the Criminal Law Amendment Act 2017 (Qld) – whether ‘no substantial miscarriage of justice has actually occurred’ – whether there was a substantial miscarriage of justice whether or not, in the Court’s view, the appellant was guilty of the offence of which he was convicted – whether it was open for the jury to not consider the questions to be answered under s 304 Criminal Code (Qld) because they concluded that a distinct question should be answered in the negative

Criminal Code (Qld), s 304, s 668E(1A)
Criminal Law Amendment Act 2017 (Qld), s 12

Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; [2012] HCA 14, followed
Kalbasi v Western Australia (2018) 92 ALJR 305; (2018) 352 ALR 1; [2018] HCA 7, followed
Lane v The Queen (2018) 92 ALJR 689; (2018) 357 ALR 1; [2018] HCA 28, followed
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, followed

COUNSEL:

L K Crowley QC for the appellant
C W Heaton QC for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director…

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Details
AGLC
R v Thompson [2019] QCA 29
Case
[2019] QCA 29
Decision Date

CaseChat Overview and Summary

This appeal concerns the conviction of the appellant, Thompson, for the murder of Mr Knyvett. The appellant argued at trial that the killing was the result of sudden provocation in the form of an unwanted sexual advance by Mr Knyvett. The Court of Appeal was asked to determine whether the primary judge's misdirection of the jury in applying section 304 of the Criminal Code (Qld) as amended by the Criminal Law Amendment Act 2017 (Qld) constituted a substantial miscarriage of justice, warranting the appeal's allowance and a retrial.

The key legal issue was whether the application of the proviso in section 310(3) of the Criminal Procedure Act 2009 (Qld) precluded the Court of Appeal from allowing the appeal. The appellant argued that the Court should not be persuaded that the evidence proved the appellant's guilt of murder, and that the case was one where there had been a substantial miscarriage of justice regardless of guilt. The Court considered whether the primary judge's misdirection led to a situation where the jury did not determine whether the appellant was guilty of murder, and whether this amounted to a substantial miscarriage of justice.

The Court found that applying the proviso would require it to exercise the function of the jury in determining whether the defence of provocation was established, which the jury had not done. The Court held that allowing the appeal and ordering a retrial was necessary because the primary judge's misdirection prevented the jury from properly considering the appellant's defence of sudden provocation. The Court concluded that the application of the proviso was not appropriate in this case, as it would substitute trial by an appeal court for trial by jury.

The Court allowed the appeal, quashed the appellant's conviction, and ordered a retrial. This decision ensures that the appellant has the opportunity to present his defence of sudden provocation to a properly directed jury, rectifying the error that occurred in the original trial.

Orders

Orders of the court

1. Allow the appeal.

2. Quash the appellant’s conviction.

3. The appellant be re-tried.

Background

Background to the litigation

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Evidence

Evidence Before The Court

For the appellant, it is argued that the proviso cannot be applied for two reasons. The first is that the Court should not be persuaded that the evidence proved the appellant’s guilt of murder. Unless this Court is persuaded of the appellant’s guilt, it cannot be said that no substantial miscarriage of justice has actually occurred, as the High Court held in Weiss v The Queen (“Weiss”).[1] The second is that this is one of those cases where there has been a substantial miscarriage of justice whether or not, in this Court’s view, the appellant was guilty of the offence of which he was convicted. For the reasons that follow, the appellant’s second argument should be accepted, the appeal should be allowed, and a re-trial should be ordered.[1][2005] HCA 81; (2005) 224 CLR 300 at 317 [44].The evidence at the trial The appellant and Mr Knyvett had known each other for about 10 years. The appellant was born in 1988 and Mr Knyvett was born in 1956. At times over that 10 year period, the appellant had lived in Mr Knyvett’s house and the appellant had worked for him in his business. The prosecution case was that the appellant murdered Mr Knyvett after the pair had fallen out and the appellant had been asked to move out of the house. A friend of Mr Knyvett testified that on 13 November 2015, Mr Knyvett told him that he had discovered that the appellant had driven Mr Knyvett’s car without his permission and had caused some damage to it, Mr Knyvett had confronted the appellant and told him “to be gone by the end of the day”, and, on the following day, he had received a call from the appellant complaining that he had no money and no place to live. A forensic pathologist gave unchallenged evidence that the ultimate cause of death was inhalation of blood caused by a head injury, and in particular by a crushed and flattened nose. The appellant did not dispute that he had beaten Mr Knyvett with an empty bottle and that this had caused Mr Knyvett’s death. The appellant did not give or call evidence at the trial, but his version of events was contained in the record of his interview by police, which was played to the jury. On the day in question, the appellant was at Mr Knyvett’s house and helping him to do some work there. The appellant said that as he bent over to pick up a tool, Mr Knyvett rubbed him on “the bum”. He told police that this conduct was not unprecedented and that over the years Mr Knyvett had touched him and rubbed him many times. The appellant said that he had been sexually abused by Mr Knyvett, who had been infatuated with him. The appellant told police that when he was touched on the day in question, he felt angry and violated. He immediately left the house but then returned, approached Mr Knyvett in the kitchen, and hit him with the bottle, at least twice. He described a struggle after the first hit, but before the second hit, which caused Mr Knyvett to fall to the ground. As the appellant admitted to police, he then taped Mr Knyvett’s hands with duct tape and dragged him to the bathroom, where he also taped Mr Knyvett’s legs. He admitted that he then drove away in Mr Knyvett’s utility, before returning to the house that night with his brother to collect some clothes, tools and a television. He and his brother then drove away in Mr Knyvett’s other car.

Decision

Reasons for decision

In order to apply the proviso in the present case, this Court is asked to exercise the function of the jury to determine whether the defence of provocation was established, when quite possibly that function was not exercised by the jury. If provocation was not considered, the jury did not determine whether the appellant was guilty of murder, but instead considered only whether the prosecution had proved the facts which it had to prove. In my view, it may be said that in this case, the application of the proviso would “substitute trial by an appeal court for trial by jury”.[12][12]Lane [2018] HCA 28; (2018) 92 ALJR 689 at 698 [50] citing R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 at 330 [66].Conclusion and Orders The proviso cannot be applied, and it is conceded that in that event, the appeal must be allowed. I would order as follows:1.Allow the appeal.2.Quash the appellant’s conviction.3.The appellant be re-tried.

Ratio Decidendi

Legal Principle Established

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