R v Eaton

[2005] QCA 191

SUPREME COURT OF QUEENSLAND

CITATION:

R v Eaton [2005] QCA 191

PARTIES:

R
v
EATON, Warren Arthur
(appellant)

FILE NO/S:

CA No 239 of 2004
DC No 73 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court

DELIVERED ON:

6 June 2005

DELIVERED AT:

Brisbane

HEARING DATE:

20 April 2005

JUDGES:

McPherson and Jerrard JJA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.  Appeal allowed
2.  Conviction set aside
3.  Retrial ordered

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – appellant convicted of rape of 14 year old girl – appellant declined police interview when arrested – trial judge did not direct jury as to the right to silence of the accused – defence counsel did not request such a direction – whether a miscarriage of justice resulted from lack of direction

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – TESTS – WHETHER JURY WOULD HAVE RETURNED SAME VERDICT – MISDIRECTION AND NON-DIRECTION – Crown submission that appellant gave innocent explanation for the possible presence of semen on his clothing before even hearing detailed allegations against him was based on ambiguous evidence – trial judge summarised above submission in directing jury – prosecutor also made reference to DNA testing of the appellant’s clothing – clothing was not actually submitted for DNA testing – trial judge re-directed jury in terms that there was ‘no clear evidence’ whether appellant’s shirt was submitted for DNA analysis – whether inaccurate submissions and directions had a material effect on the jury’s verdict

Dhanhoa v R (2003) 199 ALR 547, cited
R v Coyne [1996] 1 Qd R 512, cited
R v Reeves (1992) 29 NSWLR 109, cited

COUNSEL:

A J Glynn SC for the appellant
R G Martin SC for the respondent

SOLICITORS:

Robertson O’Gorman for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. McPHERSON JA:  I have read the reasons prepared by Jerrard JA and I agree with them.  In particular, I agree that the statements to the jury concerning DNA testing, which were in some respects inaccurate, may in the circumstances have had a material influence on the verdict in this case.

1. The appeal should be allowed and the conviction set aside, with an order for retrial of count 1 in the indictment.

1. JERRARD JA:  On 13 May 2004 Warren Eaton was convicted by a jury of the offence of raping Ms X on 29 July 2003.  Ms X was a 14 year old school student, the daughter of a woman with whom Mr Eaton had been living in his home in a de facto relationship for several months.  He was then aged 34, and he was sentenced to imprisonment for nine years for that offence.  He has appealed against…