Legal Research
Cases
Carlton v The Queen

Carlton v The Queen

Case [2008] NSWCCA 244 16 October 2008

No judgment structure available for this case.

Type to search within this case.

Reported Decision: 189 A Crim R 332

New South Wales

Court of Criminal Appeal

CITATION: CARLTON v THE QUEEN [2008] NSWCCA 244

HEARING DATE(S): 25 August 2008

JUDGMENT DATE:
16 October 2008

JUDGMENT OF: Basten JA at 1; Hislop J at 117; Price J at 118

DECISION:
(1) Grant leave to appeal in respect of convictions on 4 counts of aggravated sexual assault.
(2) Dismiss the appeal against the convictions.
(3) Grant leave to appeal against the sentences imposed in respect of each count.
(4) Dismiss the appeal against the sentences.

CATCHWORDS: CRIMINAL LAW – appeal against conviction – whether miscarriage of justice – construction of proviso – whether summing-up lacked balance and unfair – where trial judge omitted information from summing-up – whether trial judge erred in directions to jury – adequacy of correction of errors – whether directions confused jury – counsel objections to directions – corroboration of complainant’s evidence – Criminal Appeal Act 1912 (NSW) s 6(1) – Criminal Appeal Rules (NSW) r 4 - CRIMINAL LAW – jurisdiction, practice and procedure – appeal against conviction – not on question of law alone – leave required – Criminal Appeal Act 1912 (NSW) s 5 - SENTENCING – standard non-parole period – whether trial judge gave proper weight to offender’s mental illness – whether offence in the middle of the range of objective seriousness – where offender convicted of aggravated sexual intercourse – where complainant young child – harm to complainant – where offender segregated and schizophrenic – Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 54A, 54B - WORDS & PHRASES – “miscarriage of justice” – “question of law alone”

LEGISLATION CITED: Crimes Act 1900 (NSW), s 61J
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 44, 54A, 54B; Div 1A, Pt 4
Criminal Appeal Act 1912 (NSW), ss 5, 6
Criminal Appeal Rules, r 4

CATEGORY: Principal judgment

CASES CITED: Alramadan v Director of Public Prosecutions (NSW) [2007] NSWCCA 322
B v The Queen [1992] HCA 68; 175 CLR 599
Courtney v Regina [2007] NSWCCA 195; 172 A Crim R 371
Edwards v The Queen [1993] HCA 63; 178 CLR 193
Gassy v The Queen [2008] HCA 18; 82 ALJR 838
Green v The Queen [1971] HCA 55; 126 CLR 28
Hannes v Director of Public Prosecutions (Cth) (No. 2) [2006] NSWCCA 373; 60 ACSR 1; 165 A Crim R 151; 205 FLR 217
Hargan v The King [1919] HCA 45; 27 CLR 13
Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318
Nudd v The Queen [2006] HCA 9; 80 ALJR 614
The Queen v Verdins [2007] VSCA 182; 16 VR 269
R v Engert (1995) 84 A Crim R 67
R v Gallagher [1998] 2 VR 671
R v Hemsley [2004] NSWCCA 228
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
R v Way [2004] NSWCCA 131; 60 NSWLR 168
Regina v Israil [2002] NSWCCA 255
Regina v Tomazos

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 Carlton v The Queen

Details

AGLC: Carlton v The Queen [2008] NSWCCA 244
Case: [2008] NSWCCA 244
Decision Date: 16 October 2008

CaseChat Overview and Summary

In Carlton v The Queen, the appellant was convicted of aggravated sexual intercourse with a child under the age of ten. The case was heard in the Supreme Court of New South Wales, Court of Criminal Appeal. The appeal was based on several grounds, including the trial judge's summing-up, the adequacy of jury directions, and the sentence imposed. The appellant argued that there was a miscarriage of justice due to the summing-up lacking balance and fairness, as well as errors in the trial judge's directions to the jury.

The legal issues before the court were whether the summing-up by the trial judge was deficient and unfair, and whether the judge's directions to the jury were erroneous and confusing. The court also had to consider whether the trial judge adequately addressed the issue of corroboration of the complainant's evidence and whether the appellant's mental illness was properly considered during sentencing. The court had to examine whether the trial judge gave proper weight to the appellant's mental illness and whether the standard non-parole period was appropriate.

The court found that while there were errors in the summing-up and jury directions, they did not result in a miscarriage of justice. The trial judge's directions, while not perfect, did not confuse the jury to the extent that it affected the outcome of the trial. The court held that the trial judge adequately considered the appellant's mental illness during sentencing, and the sentence imposed was appropriate. The appeal was dismissed, and the conviction and sentence were upheld.

The court emphasised that appeals against conviction are not to be granted on a question of law alone, and leave is required under the Criminal Appeal Act 1912. The court also noted that the definition of "miscarriage of justice" and "question of law alone" must be carefully considered in the context of the appeal. The appeal was dismissed, and the conviction and sentence were upheld.

Orders