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 2004DIVISION:
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 madeORDERS:
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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- AGLC
- R v Wilmot [2006] QCA 91
- Case
- [2006] QCA 91
- Decision Date
CaseChat Overview and Summary
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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