Paton v The Queen

[2011] VSCA 72

SUPREME COURT OF VICTORIA

COURT OF APPEAL

NO S APCR 2009 0823

CLINTON WAYNE PATON

V

THE QUEEN

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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)

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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.

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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…