R v Campbell & Malayta

[1994] QCA 530

IN THE COURT OF APPEAL [1994] QCA 530

SUPREME COURT OF QUEENSLAND	C.A. No. 397 of 1994 C.A. No. 398 of 1994
Brisbane
BeforeFitzgerald P. Davies J.A. Dowsett J.
[R. v. Campbell] [R. v. Malayta]

T H E Q U E E N

v.

RAYMOND KENNETH CAMPBELL
and

PETER JOSEPH MICHAEL MALAYTA (Appellants)

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 07/12/1994

On 6 September 1994 the appellants were convicted in the District Court at Townsville of one count of break, enter and steal. They have appealed against the conviction on the basis of a statement made by the trial judge in directing the jury.

The prosecution case depended upon the evidence of a woman who was the de facto wife of the appellant, Malayta, and an associate of the appellant, Campbell. She gave evidence of what occurred on the relevant night, 11 April 1993, including statements made in the course of planning the offence and on the return of the appellants and others, when she received $500 from the proceeds, making her an accomplice.

In the course of his summing up, the trial judge warned the jury of the danger of acting on the uncorroborated evidence of an accomplice and explained why that warning was given. Unfortunately, in the course of doing so, he spoke of the risk "that an accomplice may seek to implicate a co-offender", implying, it was argued for the appellants, that they were guilty of the offence.

While the term "co-offender" plainly ought not have been used, what the trial judge said on that single occasion is not to be taken in isolation but in the context of the overall summing up.

It was not disputed that he correctly emphasised to the jury that the appellants were innocent unless proved to be guilty beyond reasonable doubt by the prosecution evidence. There is no basis for a conclusion that the jury might have been misled in any way, and the appeal should be dismissed.

J udgment delivered 07/12/1994

REASONS FOR JUDGMENT - THE COURT

APPEAL DISMISSED.

CATCHWORDS:CRIMINAL LAW - Directions to jury - prosecution case depended on evidence of appellant's de facto as to events 18 months previously - trial judge warned judge of danger of relying upon uncorroborated evidence of an accomplice - used the term "co-offender" - whether the term could be placed in context of overall summing up - whether jury was misled

Counsel:Ms D. Richards for the Appellants

R. Martin for the Crown

Solicitors:Legal Aid Office for the Appellant

Directors of Prosecutions for the Crown

Date/s of Hearing:28 November 1994