R v Wilmot

Case [2006] QCA 91

SUPREME COURT OF QUEENSLAND

CITATION:

R v Wilmot [2006] QCA 91

PARTIES:

R
v
WILMOT, Clinton Allan
(appellant)

FILE NO/S:

CA No 302 of 2005
SC No 13 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Bundaberg

DELIVERED ON:

31 March 2006

DELIVERED AT:

Brisbane

HEARING DATE:

10 February 2006

JUDGES:

McMurdo P, Jerrard JA and Muir J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Appeal against conviction allowed.  Set aside the conviction for murder and order a re-trial

CATCHWORDS:

CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – SELF-DEFENCE AND OTHER FORMS OF DEFENCE – GENERALLY – requirements of self-defence against an unprovoked assault under s 271(2) Criminal Code 1899 (Qld) – nature of assault must be such as to cause a reasonable apprehension of death or grievous bodily harm – defendant must honestly believe on reasonable grounds that she or he could not self-preserve other than by using the force she or he actually used – no additional requirement that the force that was in fact used be objectively necessary for self-preservation

CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – SELF-DEFENCE AND OTHER FORMS OF DEFENCE – GENERALLY – requirements of self-defence against a provoked assault under s 272 Criminal Code 1899 (Qld) –nature of assault must be such as to cause a reasonable apprehension of death or grievous bodily harm – defendant must honestly believe on reasonable grounds that she or he could not self-preserve other than by using the force she or he actually used – force used must be objectively necessary for self-preservation – whether a defender who uses lethal force before it is objectively necessary for self-preservation can re-qualify for self-defence under s 272 if the defender actually retreats before using lethal force

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE – MISDIRECTION AND NON-DIRECTION – Crown conceded at trial that plea of self-defence against unprovoked assault under s 271(2) Criminal Code 1899 (Qld) was open on the facts – trial judge misdirected jury by introducing the additional requirement that the force actually used be objectively necessary for self-preservation in relation to unprovoked self-defence plea – trial judge should have focused solely on the actual belief of the defender not the objective necessity of the force used – jury not able to clearly and fairly decide whether plea of self-defence against unprovoked assault was available

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – MISDIRECTION AND NON-DIRECTION – proviso under s 668E(1A) Criminal Code 1899 (Qld) not applied – while Prosecution’s case that the appellant was guilty of murder was very strong, a reasonable jury properly directed as to self-defence against unprovoked assault under s 271(2) Criminal Code 1899 (Qld) would not…

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Details
AGLC
R v Wilmot [2006] QCA 91
Case
[2006] QCA 91
Decision Date

CaseChat Overview and Summary

The case of R v Wilmot involved an appeal against the appellant's conviction for murder by the Queensland Court of Appeal. The appellant had been convicted of murdering a man in what was described as an unprovoked assault. The primary issue before the court was whether the trial judge had misdirected the jury on the requirements of self-defence under section 271(2) of the Criminal Code 1899 (Qld). Specifically, the court needed to determine whether the trial judge erred by requiring the appellant to prove that the force used was objectively necessary for self-preservation, in addition to the requirement that the appellant honestly believed on reasonable grounds that he could not self-preserve otherwise.

The court held that the trial judge had indeed misdirected the jury. The trial judge should have instructed the jury to consider only whether the appellant honestly believed on reasonable grounds that he could not self-preserve other than by using the force he did. The court emphasised that in cases of unprovoked assault, the objective necessity of the force used is not an additional requirement for self-defence. The misdirection rendered the verdict unreasonable or unsafe, as the jury could not properly assess the plea of self-defence under the correct legal principles. Despite the strength of the prosecution's case, the court concluded that a properly directed jury might have found the appellant was acting in self-defence. Consequently, the appeal was allowed, the conviction for murder was set aside, and a re-trial was ordered.

Orders

Orders of the court

Appeal against conviction allowed. Set aside the conviction for murder and order a re-trial

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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