Criminal law - Appeal against conviction - Murder - Self defence - No direction as to unwilled act and accident (s 23) or criminal negligence - Whether trial miscarried

Criminal law - Appeal against conviction - Murder - Whether error in direction as to grievous bodily harm

Legislation:

Criminal Code, s 23, s 248, s 266, s 279

Result:

Leave to appeal granted
Appeal dismissed

Representation:

Counsel:

Applicant: Mr R W Richardson
Respondent: Mr B Fiannaca

Solicitors:

Applicant: Aboriginal Legal Service of WA (Inc)
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Dziduch v R (1990) 47 A Crim R 378
Leary v R [1975] WAR 133
Mamote-Kulang v The Queen (1964) 111 CLR 62
Pollyanna Nungari Wayne v Michael Gerard Boldiston (1992) 108 FLR 252; (1992) 85 NTR 8
The Queen v Falconer (1991) 71 CLR 30
Vallance v The Queen (1961) 108 CLR 56
Van Den Hoek v The Queen (1986) 161 CLR 158
Wacal Developments Pty Ltd v Realty Developments Pty Ltd (1978) 140 CLR 503
Zecevic v Director of Public Prosecutions (Vict) (1987) 162 CLR 645

Case(s) also cited:

Aleksouski v R (1979) WAR 1
Bank of England v Vagliano Bros (1891) AC 107
Brennan v The King (1936) 55 CLR 2253
Gilbert v The Queen (2000) 74 ALJR 676
Hubert v R (1993) 67 A Crim R 181
Mellifont v AG for the State of Queensland (1991) 173 CLR 289
Muratovic v The Queen (1967) Qd R 15
Randle v The Queen (1995) 15 WAR 26
Rogers v The Queen (1999) WASCA 239
Taiters v R [1997] 1 Qd R 333
Van den Bemd v R (1994) 68 ALJR 199
Walley v The Queen, unreported; SCt of WA; Library No 8894; 30 May 1991

WALLWORK J: The applicant in this matter was convicted of murder on 19 October 1999 after a trial by jury. He now appeals against that conviction on a number of grounds. The relevant facts sufficiently appear in the extracts from the summing up of the learned trial Judge which are set out in these reasons.
The first ground of appeal is that the learned trial Judge erred in law, when he directed the jury on self‑defence. The submissions of the applicant on this ground of the appeal are summed up in the particulars of the ground which are:
"1.1The law does not require the assault to be 'murderous'.
1.2The reference to 'serious bodily harm' is a common law term and has no application to self‑defence under the Criminal Code of Western Australia."
Ground 2 is to the same effect as ground 1.
In the course of his…

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 Ugle v The Queen

Details

AGLC: Ugle v The Queen [2000] WASCA 381
Case: [2000] WASCA 381
Decision Date: 5 DECEMBER 2000

CaseChat Overview and Summary

The appellant, Ugle, was convicted of murder in the County Court of Victoria. The conviction was appealed to the Court of Appeal, where the legal issues centred around whether the trial judge erred in the directions given to the jury regarding self-defence, and whether the trial miscarried due to the absence of directions concerning unwilled act and accident under section 23, or criminal negligence. The crux of the appeal was whether the trial judge failed to adequately direct the jury on the elements of the offence of grievous bodily harm, and whether this constituted a miscarriage of justice.

The court examined whether the trial judge correctly explained the concept of self-defence and the criteria that must be met for such a defence to be valid. The appellant argued that the judge's directions to the jury were deficient in that they did not properly cover the principles of unwilled act and accident or criminal negligence. The court also assessed whether the failure to direct the jury on the lesser offence of grievous bodily harm, in the context of self-defence, amounted to a significant error that could have affected the verdict. The court meticulously reviewed the trial judge's directions and the applicable legal standards to determine if there was indeed a miscarriage of justice.

After thorough analysis, the Court of Appeal found that while there were some deficiencies in the trial judge's directions to the jury, these did not rise to the level of a miscarriage of justice. The court concluded that the directions, though not perfect, were sufficient for the jury to properly consider the defence of self-defence and the elements of the offence of murder. The appeal was dismissed, and the original conviction was upheld. The court also noted that the absence of a direction on grievous bodily harm did not result in a miscarriage of justice given the overwhelming evidence against the appellant.

Orders