R v Dalton

Case [2020] QCA 13

SUPREME COURT OF QUEENSLAND

CITATION:

R v Dalton [2020] QCA 13

PARTIES:

R
v
DALTON, Theresa Kenella
(appellant)

FILE NO/S:

CA No 66 of 2019
SC No 1332 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court of Queensland – Date of Conviction: 8 March 2019 (Brown J)

DELIVERED ON:

Date of Orders: 31 January 2020
Date of Publication of Reasons: 7 February 2020

DELIVERED AT:

Brisbane

HEARING DATE:

9 October 2019

JUDGES:

Sofronoff P and Morrison JA and Buss AJA

ORDERS:

Date of Orders: 31 January 2020

1.   The appeal is allowed.

2.   Grant leave to adduce evidence of the report of Caroline Hare dated 29 August 2016.

3.   The judgment of conviction is set aside.

4.   A re-trial is ordered.

CATCHWORDS:

Criminal law – Appeal against conviction – Appellant convicted after trial of procuring another (Werner) to attempt to procure the murder of the complainant – Crown alleged the appellant was criminally responsible as an aider under s 7(1)(b) or as a procurer under s 7(1)(d) of the Criminal Code (Qld) – Werner convicted prior to the appellant's trial on his plea of guilty in the District Court of New South Wales of the offence of soliciting the complainant's murder – The offence to which Werner pleaded guilty included as an element that Werner intended to procure the complainant's murder – Werner a Crown witness at the appellant's trial – Werner denied in evidence that he in fact intended to procure the complainant's murder – Trial judge directed the jury that regard could be had to Werner's plea of guilty in the District Court of New South Wales in proof of the Crown's case against the appellant – Whether the direction was erroneous or occasioned a miscarriage of justice – Late disclosure by the Crown of a document concerning Werner – Whether late disclosure occasioned a miscarriage of justice – Whether the verdict of guilty was unreasonable or could not be supported having regard to the evidence.

Criminal Code (Qld), s 7(1)(b), s 7(1)(d)

Andelman v The Queen (2013) 38 VR 659; [2013] VSCA 25, cited
Bannon v The Queen (1995) 185 CLR 1; [1995] HCA 27, cited
BCM v The Queen (2013) 88 ALJR 101; [2013] HCA 48, cited
Dunn v The Queen (2015) 252 A Crim R 147; [2015] WASCA 126, cited
Fitzgerald v The Queen (2014) 88 ALJR 779; [2014] HCA 28, cited
GAX v The Queen (2017) 91 ALJR 698; [2017] HCA 25, cited
Humphries v The Queen [2015] NSWCCA 319, cited
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, followed
Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41, followed
Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50, cited
Nominal Defendant v Clements (1960) 104 CLR 476; [1960] HCA 39, cited
Romeo v The Queen [1988] WAR 304, cited
R…

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Details
AGLC
R v Dalton [2020] QCA 13
Case
[2020] QCA 13
Decision Date

CaseChat Overview and Summary

The case of R v Dalton involved the appellant being convicted after a trial of procuring another individual, Werner, to attempt to procure the murder of a complainant. The Crown argued that the appellant was criminally responsible as an aider under section 7(1)(b) or as a procurer under section 7(1)(d) of the Criminal Code (Qld). Werner had previously been convicted in the District Court of New South Wales on a plea of guilty to the offence of soliciting the complainant's murder, which included the element that Werner intended to procure the complainant's murder. Werner was a Crown witness at the appellant's trial, where he denied that he in fact intended to procure the complainant's murder. The trial judge directed the jury that regard could be had to Werner's plea of guilty in the District Court of New South Wales in proof of the Crown's case against the appellant.

The court was required to decide whether the direction given to the jury by the trial judge was erroneous or occasioned a miscarriage of justice. Another issue was whether the late disclosure by the Crown of a document concerning Werner occasioned a miscarriage of justice. The court was also required to determine whether the verdict of guilty was unreasonable or could not be supported having regard to the evidence. The court examined the evidence presented, including Werner's testimony, and the circumstances surrounding the alleged procurement of murder. The court also considered the effect of the late disclosure of the document concerning Werner and the direction given to the jury.

The court found that the direction given to the jury by the trial judge was erroneous and occasioned a miscarriage of justice. The court held that the Crown's case against the appellant relied heavily on Werner's plea of guilty to the offence of soliciting the complainant's murder. However, Werner denied in evidence that he in fact intended to procure the complainant's murder. The court held that the direction given to the jury was erroneous because it allowed the jury to infer the appellant's guilt from Werner's plea of guilty, without considering whether Werner's plea was reliable evidence of the appellant's criminal responsibility. The court also found that the late disclosure of the document concerning Werner did not occasion a miscarriage of justice. The court held that the document did not contain any new evidence that was material to the appellant's criminal responsibility, and that the appellant had not been prejudiced by the late disclosure.

The court concluded that the verdict of guilty was unreasonable and could not be supported having regard to the evidence. The court held that the evidence did not establish beyond reasonable doubt that the appellant was criminally responsible as an aider or procurer of the attempted murder of the complainant. The court held that the evidence was insufficient to support a finding that the appellant had procured Werner to attempt to procure the complainant's murder, or that the appellant had aided or abetted Werner in doing so.

ORDERS:
The appeal was allowed, and the judgment of conviction was set aside. A re-trial was ordered. The court granted leave to adduce evidence of the report of Caroline Hare dated 29 August 2016. The orders were made on 31 January 2020.

Orders

Orders of the court

Date of Orders: 31 January 2020

1. The appeal is allowed.

2. Grant leave to adduce evidence of the report of Caroline Hare dated 29 August 2016.

3. The judgment of conviction is set aside.

4. A re-trial is ordered.

Background

Background to the litigation

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Evidence

Evidence Before The Court

After that incident Mr Stewart’s solicitors lodged a caveat against the title to the block of land which adjoined the matrimonial property.Mr Werner: overview of his evidence Mr Werner was a Crown witness and gave evidence, relevantly, as follows. Between 2009 and 2011 Mr Werner and the appellant were in a relationship. Mr Werner said that in December 2009 he had visited friends in New South Wales. Mr Neels, whom he had met previously, was present. When he returned to Queensland, Mr Werner told the appellant about Mr Neels. Mr Werner said to the appellant that Mr Neels was “very sleazy, the most sleaziest person” that Mr Werner knew (ts 2-48). The appellant asked Mr Werner whether Mr Neels “could help her get rid of Malcolm?” (ts 2-48). Mr Werner responded, “I don’t think so. I doubt it” (ts 2-48). Mr Werner gave evidence that the appellant raised with him “all the time” getting rid of Mr Stewart because she did not want to share the matrimonial assets with him. She said, “Malcolm’s got to go” (ts 2-48). The main topic of discussion was the block of land which adjoined the matrimonial property. The appellant told Mr Werner that “Malcolm’s not getting my land” (ts 2-48, 2-49). Eventually, Mr Werner telephoned Mr Neels, from a telephone box on the Gold Coast, “to get [the appellant] off [his] back” (ts 2 49). Mr Werner told Mr Neels that he had a friend “who [had] a problem with somebody and [wanted] to get rid of them”. Mr Werner asked Mr Neels if he could help his friend. Mr Werner mentioned that there would be “money in it” for Mr Neels (ts 2-49). Mr Neels said he could help. Mr Werner recounted to the appellant his conversation with Mr Neels. Mr Werner then telephoned Mr Neels and said that the person for whom he was acting was willing to pay $20,000. Mr Neels indicated that this amount would be satisfactory. However, the next day, Mr Neels again spoke to Mr Werner by telephone and said the price would have to be $40,000. After speaking to the appellant, Mr Werner telephoned Mr Neels and told him that the person for whom he was acting was willing to pay $40,000. Mr Werner gave evidence that the appellant provided him with $20,000 cash as a part payment together with a photograph of Mr Stewart and a note containing addresses and motor vehicle details relevant to Mr Stewart. Next, shortly before Mr Werner and the appellant went to Tasmania on holiday, Mr Werner met with Mr Neels at Burleigh Heads. Mr Werner gave Mr Neels the $20,000 cash, the photograph and the note. Within a few days, while he and the appellant were in Tasmania, Mr Werner telephoned Mr Neels. Mr Neels told Mr Werner that they had been photographed together at Burleigh Heads. Mr Werner asked Mr Neels to send him a copy of the photograph by facsimile transmission. No copy of the alleged photograph was sent. Mr Werner said he recounted to the appellant his conversation with Mr Neels. He told the appellant that Mr Neels had “ripped her off” (ts 2-53). The appellant added that Mr Neels had taken her money and run away with it.

Decision

Reasons for decision

I would grant the appellant leave to adduce into evidence in the appeal a copy of Ms Hare’s report. However, ground 2 of the appeal is without merit.Conclusion I would allow the appeal on the basis of ground 3. The judgment of conviction should be set aside. A new trial should be had.

Ratio Decidendi

Legal Principle Established

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