R v Campbell - [2009] QCA 128

SUPREME COURT OF QUEENSLAND

CITATION:

R v Campbell [2009] QCA 128

PARTIES:

R
v
CAMPBELL, Don Gordon
(appellant)

FILE NO/S:

CA No 242 of 2008
DC No 2604 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

22 May 2009

DELIVERED AT:

Brisbane

HEARING DATE:

2 March 2009

JUDGES:

McMurdo P, Chesterman JA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal allowed
2. Order the conviction be quashed
3. Direct a verdict of not guilty

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – TAKING OBJECTION TO SUMMING UP – where applicant contended there was a miscarriage of justice because the trial judge did not sufficiently direct the jury on the law relating to possession – where confusion as to the subject matter of the charge infected the summing up – whether as a consequence the trial judge had misdirected the jury on the element of “knowing possession”

CRIMINAL LAW – PROCEDURE – INFORMATION, INDICTMENT AND PRESENTMENT – AVERMENTS – UNCERTAINTY, DUPLICITY AND AMBIGUITY – where the appellant contended that there was a miscarriage of justice because the charge was duplicitous – where appellant argued it was not clear which item of child exploitation material was subject of the charge – whether there was confusion as to the subject matter of the charge

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where appellant contended that the verdict was unreasonable and could not be supported having regard to the evidence. – where lack of precision as to the subject matter of the charge infected the evidence – whether or not there was sufficient evidence to sustain the verdict

Criminal Code 1899 (Qld), s 207A, s 228D

Holland v The Queen (2005) 222 ALR 694; [2005] WASCA 140, applied
Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77, cited
R v Morrow and Flynn [1991] 2 Qd R 309, applied
R v Sharpe [2001] 2 SCR 45; (2001) SCC 2, applied
R v Shew [1998] QCA 333, distinguished
R v Solway [1984] 2 Qd R 75, cited

COUNSEL:

D Shepherd for the appellant
P F Rutledge for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

[1] McMURDO P: This appeal should be allowed for the reasons given by Daubney J. I agree with the orders set out by Daubney J.

[2] CHESTERMAN JA: I agree with the orders proposed by Daubney J for the reasons given by his Honour.

[3] DAUBNEY J: On 9 September 2008 a jury found the appellant guilty of an offence that between 6 September 2005 and 23 March 2006 he knowingly possessed child exploitation material contrary to s 228D of the Criminal Code 1899 (Qld).…

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 R v Campbell

Details

AGLC: R v Campbell [2009] QCA 128
Case: [2009] QCA 128
Decision Date: 22 May 2009

CaseChat Overview and Summary

The case of R v Campbell involved the appellant who was convicted of possessing child exploitation material. The appellant sought to overturn his conviction on various grounds, primarily focusing on the trial judge's direction to the jury, the nature of the charge, and the sufficiency of the evidence. The Court of Appeal was tasked with determining whether there was a miscarriage of justice that warranted a new trial or an acquittal.

The central legal issues in this appeal were whether the trial judge misdirected the jury on the element of "knowing possession" and whether the charge was duplicitous. The appellant argued that the trial judge's summing up was insufficient in guiding the jury on the legal standards required for possession, particularly with regard to the necessary level of knowledge. Furthermore, the appellant contended that the charge was duplicitous, as it was unclear which specific item of child exploitation material was the subject of the offence. This confusion, it was argued, permeated the entire trial process, including the evidence presented.

The Court of Appeal found that the trial judge had indeed misdirected the jury in not clearly explaining the legal requirement of "knowing possession". The court also determined that the charge was duplicitous due to the lack of clarity regarding which specific item of child exploitation material was the subject of the offence. This confusion not only tainted the summing up but also the evidence presented. Given these errors, the Court of Appeal concluded that the verdict was unreasonable and could not be supported by the evidence. As a result, the appeal was allowed, the conviction was quashed, and a verdict of not guilty was directed.

Orders

Orders of the court

1. Appeal allowed

2. Order the conviction be quashed

3. Direct a verdict of not guilty

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.

CITATION:	R v Campbell [2009] QCA 128
PARTIES:	R v CAMPBELL, Don Gordon (appellant)
FILE NO/S:	CA No 242 of 2008 DC No 2604 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	22 May 2009
DELIVERED AT:	Brisbane
HEARING DATE:	2 March 2009
JUDGES:	McMurdo P, Chesterman JA and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal allowed 2. Order the conviction be quashed 3. Direct a verdict of not guilty
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – TAKING OBJECTION TO SUMMING UP – where applicant contended there was a miscarriage of justice because the trial judge did not sufficiently direct the jury on the law relating to possession – where confusion as to the subject matter of the charge infected the summing up – whether as a consequence the trial judge had misdirected the jury on the element of “knowing possession” CRIMINAL LAW – PROCEDURE – INFORMATION, INDICTMENT AND PRESENTMENT – AVERMENTS – UNCERTAINTY, DUPLICITY AND AMBIGUITY – where the appellant contended that there was a miscarriage of justice because the charge was duplicitous – where appellant argued it was not clear which item of child exploitation material was subject of the charge – whether there was confusion as to the subject matter of the charge CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where appellant contended that the verdict was unreasonable and could not be supported having regard to the evidence. – where lack of precision as to the subject matter of the charge infected the evidence – whether or not there was sufficient evidence to sustain the verdict Criminal Code 1899 (Qld), s 207A, s 228D Holland v The Queen (2005) 222 ALR 694; [2005] WASCA 140, applied Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77, cited R v Morrow and Flynn [1991] 2 Qd R 309, applied R v Sharpe [2001] 2 SCR 45; (2001) SCC 2, applied R v Shew [1998] QCA 333, distinguished R v Solway [1984] 2 Qd R 75, cited
COUNSEL:	D Shepherd for the appellant P F Rutledge for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent