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The Queen v Koani

The Queen v Koani

Case [2015] QSC 325 3 November 2015

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[2015] QSC 325

SUPREME COURT OF QUEENSLAND
CRIMINAL JURISDICTION
DALTON J
Indictment No 67 of 2015
THE QUEEN
v.
CHRISTOPHER CHARLES KOANI
BRISBANE
10.11 AM, TUESDAY, 3 NOVEMBER 2015
RULING

HER HONOUR: In this case, there is a real possibility that the jury may conclude on the evidence before it that, at the time the gun the defendant was holding discharged:

the defendant intended to kill his girlfriend and, to that end, had loaded the gun and, from close range, had presented it, and at her; that he went to cock the gun with the plan that he would then discharge the weapon to effect his intention,

but that because of a peculiarity of the gun, they are left with a reasonable doubt that he, in fact, pulled the trigger or otherwise deliberately discharged the gun.

They may have such a reasonable doubt based on the propensity of the gun to fire if, during the process of someone cocking it, that person’s finger or thumb slips off the spur of the hammer. The evidence was that the spur of the hammer had been shortened and was therefore hard to control and that, if the hammer was moved more than about 10 millimetres backwards in the process of cocking the gun then, due to a slip, released, the gun would fire. The ballistics expert talked about the slip of the thumb or finger from the hammer in this way as “hammer slip”, and I will use that term in these reasons.

So if the jury did reach that point in their deliberations, they would be left with a factual situation where the defendant intended to kill Ms Leaney by shooting her with the gun, had tried to do so, and in fact had done so, but that the actual death-causing act, to use the words of the cases, had not been a voluntary one. The defence submission was that, in these circumstances, section 23(1)(a) applied, and the only offence the jury could convict the defendant of was manslaughter, and that was manslaughter by reason of a breach of duty at s 289 of the code. It was said that murder was not available because there was no coincidence of mens rea and actus rea, so that, in the circumstances, murder was not open.

I note that the defence asked for particulars of the charge and that the Crown particularised those in a document which I have marked G for identification. The Crown particularised as its first case that the defendant deliberately caused the gun to discharge at a time when the defendant had intent, but put an alternative case that, at a time when he had intent, the defendant was in charge of a dangerous thing and failed to take care of it, that care being required by the duty laid down by section 289 of the code.

The defence submission is an unattractive one. And in this respect, I refer to the comments of Mason CJ in Royall v The…

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 The Queen v Koani

Details

AGLC: The Queen v Koani [2015] QSC 325
Case: [2015] QSC 325
Decision Date: 3 NOVEMBER 2015

CaseChat Overview and Summary

In this case, the defendant, Christopher Charles Koani, was charged with the murder of his girlfriend, Ms Leaney. The defendant had loaded and cocked a gun, which subsequently discharged, resulting in Ms Leaney's death. The central legal issue was whether the defendant's act of discharging the gun was voluntary, and if not, whether he could still be convicted of murder. The defence argued that if the jury was left with a reasonable doubt about the voluntariness of the act, they could only convict the defendant of manslaughter, as per section 23(1)(a) of the Code. The Crown, on the other hand, contended that the defendant could be convicted of murder if they found that the defendant had the requisite intent at the time of the discharge, even if the act was not voluntary.

The court found that the defendant's argument based on section 23(1)(a) must fail, as the cases of Royall and Demirian indicated that if the accused intended to cause death and it did kill, it was no answer to a charge of murder that it caused death in a way that was unexpected. However, the court acknowledged that there was a difficulty with applying these cases to the present facts, as the analogy of hammer slip was not perfect. The court also noted that the definition of murder in Queensland was different from that in non-Code states, which meant that the death-causing act had to be focused on pulling the trigger or deliberately causing the weapon to discharge.

Ultimately, the court ruled that the Crown could still pursue a charge of murder if the jury found that the defendant had an intention to kill or do grievous bodily harm at the time of the discharge, even if the act was not deliberate. The court accepted that using section 289 as a component of the murder case was legitimate, as it plugged the gap left by a reasonable doubt about a willed act. The court also rejected the policy argument that the defendant should not be liable for murder if the discharge of the gun occurred without his voluntary act, as this did not stand in the way of the law in non-Code states.

The court directed the jury to follow a specific flowchart in their deliberations, which took into account the voluntariness of the act, the defendant's intent, and the breach of section 289. The court emphasised that the jury needed to be certain that the intent endured right up until the point of discharge of the firearm before they could convict the defendant of murder. If the jury found that the defendant had the requisite intent, they could still find him guilty of murder if they also found that there was a breach of section 289. If the jury found that the defendant did not deliberately discharge the shot, they could still find him guilty of manslaughter if they found that he intended to kill or do grievous bodily harm at the time of the discharge.

Orders