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R v Chong

R v Chong

Case [2012] QCA 265 28 September 2012

Appeal

Miscarriage of Justice

Misdirection and Non-direction

Powers of Court on Appeal

Criminal Law

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Chong [2012] QCA 265

PARTIES:

R
v
CHONG, Initia Rachel
(appellant/applicant)

FILE NO/S:

CA No 342 of 2011
DC No 100 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Mt Isa

DELIVERED ON:

28 September 2012

DELIVERED AT:

Brisbane

HEARING DATE:

23 August 2012

JUDGES:

Holmes JA, Fryberg and North JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    Appeal against conviction on count 1 on the indictment is allowed.

2.    The conviction is quashed.

3.    A verdict of acquittal is entered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – OTHER MATTERS – where the appellant was convicted after a trial of one count of serious assault – where the complainant’s version of the assault was that the appellant had thrown a rock at her, while another Crown witness said she had merely threatened to do so – where the Crown particularised the case according to the complainant’s version, addressed the jury on the basis of that account and did not advert to the evidence of the other witness – where the trial judge directed the jury that the definition of assault would be satisfied on either version – whether the verdict was unreasonable

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where the appellant was convicted after a trial of one count of serious assault – where the complainant’s version of the assault was that the appellant had thrown a rock at her, while another Crown witness said she had merely threatened to do so – where the Crown particularised the case according to the complainant’s version and ran its case on the basis that the appellant had thrown the rock – where the trial judge foreshadowed to counsel that he would direct the jury that either the throwing of the rock or the threat to throw it would suffice to constitute the offence and gave a direction accordingly – where defence counsel raised no objection before or after the direction was given – whether there was a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where the appellant was convicted after a trial of one count of serious assault – where the complainant’s version of the assault was that the appellant had thrown a rock at her, while another Crown witness said she had merely threatened to do so – where the trial judge directed the jury in such a way as to suggest throwing, attempt and threat as three separate bases for convicting the appellant of assault – where the jury was not directed as to which physical acts were said to constitute the assault – where the jury was not directed as to the requisite intent for attempt – where defence…

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 Chong

Details

AGLC: R v Chong [2012] QCA 265
Case: [2012] QCA 265
Decision Date: 28 September 2012

CaseChat Overview and Summary

In the case of R v Chong, the appellant was convicted after a trial of one count of serious assault. The complainant alleged that the appellant threw a rock at her, while another Crown witness claimed she only threatened to do so. The Crown presented its case based on the complainant’s version of events and did not address the alternative account provided by the other witness. The trial judge directed the jury that the offence of assault could be satisfied by either the throwing of the rock or the threat to throw it. Defence counsel did not object to this direction.

The legal issues before the court were whether the verdict was unreasonable, whether there was a miscarriage of justice due to the trial judge’s direction, and whether there was a misdirection or non-direction that warranted a new trial or acquittal. The court considered whether the jury was sufficiently directed on the requisite elements of the offence, particularly the physical acts that constituted the assault and the requisite intent for an attempt. The court also examined whether the absence of objection by defence counsel affected the outcome.

The court concluded that the trial judge's direction was misleading as it suggested that throwing, attempt, and threat were separate bases for convicting the appellant of assault, without clarifying which acts constituted the assault. This misdirection could have led the jury to convict on an incorrect basis. The court found that the misdirection was significant and likely affected the outcome of the trial, thus constituting a miscarriage of justice. Consequently, the appeal against the conviction was allowed, the conviction was quashed, and a verdict of acquittal was entered.

The court’s final orders included allowing the appeal against the conviction on count 1, quashing the conviction, and entering a verdict of acquittal. Given that the appellant had served almost the entire non-parole period and the Director of Public Prosecutions indicated an unwillingness to re-try the case, the court considered it appropriate to enter a verdict of acquittal.

Orders

Orders of the court

1. Appeal against conviction on count 1 on the indictment is allowed.

2. The conviction is quashed.

3. A verdict of acquittal is entered.

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.

Citations

AGLC Citation

R v Chong [2012] QCA 265

Most Recent Citation

R v Draper [2015] QCA 66

Cases citing this decision · 9 of 9 shown

R v Beo
[2025] QCA 40 Para 11

…here was no need for any amendment of the particulars and the case could be left to the jury on the broader basis as intimated by the trial judge. [3][2012] QCA 265, [13]-[16] (Holmes JA) ( Chong ). [4]At [65] (Morrison JA).…
R v Knight
[2022] QCA 31 Para 25

…Further, particulars of the indictment form part of the formal record of the court and bind the Crown until they are amended.[48] [48] R v Chong [2012] QCA 265, at [32].…
Smith-Towns v Tasmania
[2019] TASCCA 22

…Criminal Code Act 1924 (Tas), ss 240(1), 311(1), 312 and 314. R v Emery (1975) 11 SASR 169; R v Chong [2012] QCA 265, considered. Johnson v Miller (1937) 59 CLR 467, referred to.…
R v Hitzke
[2018] QDC 207 Para 1

…Of course, particulars may be amended on application if there is no prejudice caused to the defence. [180][2012] QSC 420 at [47]. Also see R v Chong [2012] QCA 265 at [32].…
Cleret v Commissioner of Police
[2017] QDC 41 Para 1

…re it remains likely that no more than the imposition of a modest fine would be the outcome if there was any further conviction of the appellant. [21][2012] QCA 265 at [24]-[27]. [22](1984) 154 CLR 627. [23] King v R (1986) 161 CLR 423.…
Taylor v Commissioner of Police
[2017] QDC 23

…n 2010, ss 19(1)(b), 19(1)(c), 48(1), 124(g), 128(1), 133(1) CASES: Bropho v Western Australia (1990) 171 CLR 1 R v Chong [2012] QCA 265 Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627 R v Jackson [2005] SASC 472 King v R (1986) 161 CLR 423 Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249 St…
R v Draper
[2015] QCA 66 Para 7

…e misdirection ground[21] and found it unnecessary to address the ground concerning the prosecution’s departure from the particulars.[22] [17][2012] QCA 265. [18]Above, [17]. [19]Above, [32] - [38]. [20]Above, [39]. [21]Above, [42]. [22]Above, [43].…
R v Watkins and Spry
[2014] QDC 277

…ALR 225; Tripodi v R [1961] 104 CLR 1; Rogerson v R (1992) 107 ALR 225; R v Trifyllis (1998) QCA 416; R v R [1998] QCA 83; R v Chong [2012] QCA 265. COUNSEL: AW Collins for the applicant Watkins Ms CJ McKinnon for the applicant Spry J Robson for the respondent SOLICITORS: Arthur Browne & Associates for the appli…
Cox v Commissioner of Police
[2013] QDC 278 Para 1

…justice. The last consideration enlivens the relevance of looking at the sentence likely to be imposed, if a conviction was secured on a retrial. [25][2012] QCA 265 at [24]-[27] and in particular reference to the relevant factors identified in Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627.…

View all 9 citing cases →

Cases cited in this decision · 5 of 5 shown

Patel v The Queen
[2012] HCA 29

…, [1937] HCA 77, considered Patel v The Queen (2012) 290 ALR 185, [2012] HCA 29, cited R v Leavitt [1985] 1 Qd R 343, considered R v O’Neill [1996] 2 Qd R 326, [1995] QCA 331, considered R v Trifyllis [1998] QCA 416, considered COUNSEL: J J Allen for the appellant/applicant G P Cash for the respondent SOLICITORS…
R v Trifyllis
[1998] QCA 416 Para 1

…s would inevitably have been allowed, or on what conditions that might have occurred. In any event, the respondent has not applied to amend them. [10][1998] QCA 416.…
R v O'Neill
[1995] QCA 331

…tt [1985] 1 Qd R 343, considered R v O’Neill [1996] 2 Qd R 326, [1995] QCA 331, considered R v Trifyllis [1998] QCA 416, considered COUNSEL: J J Allen for the appellant/applicant G P Cash for the respondent SOLICITORS: Legal Aid Queensland for the appellant/applicant Director of Public Prosecutions (Queensland) f…
Director of Public Prosecutions (Nauru) v Fowler
[1984] HCA 48

…ector of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627, [1984] HCA 48, considered Johnson v Miller (1937) 59 CLR 467, [1937] HCA 77, considered Patel v The Queen (2012) 290 ALR 185, [2012] HCA 29, cited R v Leavitt [1985] 1 Qd R 343, considered R v O’Neill [1996] 2 Qd R 326, [1995] QCA 331, considered…
Johnson v Miller
[1937] HCA 77

…27, [1984] HCA 48, considered Johnson v Miller (1937) 59 CLR 467, [1937] HCA 77, considered Patel v The Queen (2012) 290 ALR 185, [2012] HCA 29, cited R v Leavitt [1985] 1 Qd R 343, considered R v O’Neill [1996] 2 Qd R 326, [1995] QCA 331, considered R v Trifyllis [1998] QCA 416, considered COUNSEL: J J Allen fo…

Legislation cited in this decision · 2

Criminal Code Act 1899 (Qld)
245 1 mention
District Court of Queensland Act 1967 (Qld)
8 1 mention (from Para 1)

CITATION:	R v Chong [2012] QCA 265
PARTIES:	R v CHONG, Initia Rachel (appellant/applicant)
FILE NO/S:	CA No 342 of 2011 DC No 100 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Mt Isa
DELIVERED ON:	28 September 2012
DELIVERED AT:	Brisbane
HEARING DATE:	23 August 2012
JUDGES:	Holmes JA, Fryberg and North JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal against conviction on count 1 on the indictment is allowed. 2. The conviction is quashed. 3. A verdict of acquittal is entered.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – OTHER MATTERS – where the appellant was convicted after a trial of one count of serious assault – where the complainant’s version of the assault was that the appellant had thrown a rock at her, while another Crown witness said she had merely threatened to do so – where the Crown particularised the case according to the complainant’s version, addressed the jury on the basis of that account and did not advert to the evidence of the other witness – where the trial judge directed the jury that the definition of assault would be satisfied on either version – whether the verdict was unreasonable CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where the appellant was convicted after a trial of one count of serious assault – where the complainant’s version of the assault was that the appellant had thrown a rock at her, while another Crown witness said she had merely threatened to do so – where the Crown particularised the case according to the complainant’s version and ran its case on the basis that the appellant had thrown the rock – where the trial judge foreshadowed to counsel that he would direct the jury that either the throwing of the rock or the threat to throw it would suffice to constitute the offence and gave a direction accordingly – where defence counsel raised no objection before or after the direction was given – whether there was a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where the appellant was convicted after a trial of one count of serious assault – where the complainant’s version of the assault was that the appellant had thrown a rock at her, while another Crown witness said she had merely threatened to do so – where the trial judge directed the jury in such a way as to suggest throwing, attempt and threat as three separate bases for convicting the appellant of assault – where the jury was not directed as to which physical acts were said to constitute the assault – where the jury was not directed as to the requisite intent for attempt – where defence…