Paton v The Queen

Case [2011] VSCA 72


SUPREME COURT OF VICTORIA

COURT OF APPEAL

NO S APCR 2009 0823

CLINTON WAYNE PATON
V
THE QUEEN

---

JUDGES NETTLE, NEAVE AND TATE JJA
WHERE HELD MELBOURNE
DATE OF HEARING 15 February 2011
DATE OF JUDGMENT 25 March 2011
MEDIUM NEUTRAL CITATION [2011] VSCA 72
JUDGMENT APPEALED FROM R v Paton (Unreported, County Court of Victoria, Judge Duggan, 16 September 2009)

---

CRIMINAL LAW – Appeal against conviction – Assault – Indecent assault – Recklessly causing injury – False imprisonment – Mental element for false imprisonment – Error sufficient to cause the trial to miscarry – Aggregate of errors.

JURY DIRECTION – Propensity evidence – Uncharged acts – Directions to jury on uncharged acts – Whether judge erred in directing the jury as to the applicant’s previous acts of violence – Recklessness – Whether judge misdirected the jury on test for recklessness – ‘knowing that serious injury might occur’ as opposed to ‘knowing that serious injury will probably occur’ – Application for leave to appeal allowed – Appeal allowed – Conviction set aside and re-trial ordered.

---

Appearances: Counsel Solicitors
For the Applicant Mr D A Dann Littleton Hackford and D’Alessandro
For the Crown Mr J D McArdle QC Mr C Hyland, Solicitor For Public Prosecutions

NETTLE JA:

  1. I have had the advantage of reading in draft, the reasons of Tate JA and I agree with her Honour and to the orders she proposes.

NEAVE JA:

  1. I have had the advantage of reading the judgment of Tate JA in draft form and agree, for the reasons her Honour gives, that the application for leave to appeal be granted, the appeal allowed and a re-trial ordered.

TATE JA:

  1. The applicant was convicted in the County Court of two counts of assault, one count of indecent assault, two counts of false imprisonment and one count of recklessly causing injury.  He pleaded guilty to a further count of assault.

  1. He was sentenced to eight months’ imprisonment for the first assault (Count 1); twelve months’ imprisonment for the second (Count 3); eighteen months’ imprisonment for the indecent assault (Count 4); eight months’ imprisonment for the first count of false imprisonment (Count 7); eight months’ imprisonment for the second count of false imprisonment (Count 8); two years’ imprisonment for the offence of recklessly causing injury (Count 10) and three months’ imprisonment for the third assault (Count 11), to which he pleaded guilty.

  1. The trial judge directed that two months of the sentence imposed with respect to the first assault, four months of the sentence imposed for the second assault; eight months of the sentence imposed with respect to the indecent assault; two months of the sentence imposed for the first count of false imprisonment and two months of the sentence imposed for the second count of false imprisonment be served cumulatively upon each other and upon the sentence imposed with respect to the offence of recklessly causing serious injury.   The Total Effective Sentence was three years and six months’ imprisonment with a non-parole period…

Continue reading Paton v The Queen

Sign in free to access the full text

Details
AGLC
Paton v The Queen [2011] VSCA 72
Case
[2011] VSCA 72
Decision Date

CaseChat Overview and Summary

The appellant, Paton, was convicted by a jury in the Supreme Court of Victoria of various offences, including assault, indecent assault, recklessly causing injury, and false imprisonment. Paton appealed against his conviction and sentence to the Court of Appeal of the Supreme Court of Victoria, which was subsequently allowed by the High Court. The appeal raised issues regarding the judge's directions to the jury, particularly in relation to propensity evidence and the definition of recklessness.

The primary legal issues before the court were whether the judge had erred in directing the jury regarding the appellant's previous acts of violence, and whether the judge had misdirected the jury on the test for recklessness. The court considered whether the phrase 'knowing that serious injury might occur' was appropriately used instead of 'knowing that serious injury will probably occur' in the jury direction. Additionally, the court examined whether the aggregate of errors in the trial was sufficient to cause it to miscarry.

In allowing the appeal and setting aside the conviction, the court found that the judge's directions to the jury were erroneous. The court held that the use of the phrase'might occur' instead of 'will probably occur' misdirected the jury on the test for recklessness, which was a significant error given the importance of the mental element in the crime of false imprisonment. The court also noted that there were multiple errors during the trial, which collectively contributed to a miscarriage of justice. As a result, the court allowed the appeal, set aside the conviction, and ordered a re-trial.

The court's final orders were to allow the application for leave to appeal, allow the appeal, set aside the conviction, and order a re-trial for the appellant.

Orders

Orders of the court

I would allow the application for leave to appeal and allow the appeal, set aside the conviction and order a re-trial.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.