R v Graham and Alliston - [2011] QCA 187

SUPREME COURT OF QUEENSLAND

CITATION:

R v Graham & Alliston [2011] QCA 187

PARTIES:

R
v
GRAHAM, Jeremy Mark
(appellant)

R
v
ALLISTON, Candida Lee-Bianca
(appellant/applicant)

FILE NO/S:

CA No 318 of 2010
CA No 324 of 2010
DC No 79 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction
Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

Orders delivered on 1 June 2011
Reasons delivered on 9 August 2011

DELIVERED AT:

Brisbane

HEARING DATE:

27 May 2011

JUDGES:

Fraser and Chesterman JJA and Jones J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Delivered on 1 June 2011:

In CA No 318 of 2010:

1.    Appeal allowed.

2.    The convictions are set aside.

3.    A new trial is ordered.

In CA No 324 of 2010:

1.     Appeal allowed.

2.     The conviction is set aside.

3.     A new trial is ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – CONTROL OF PROCEEDINGS – DISCHARGE OF JURY – where the appellant, Alliston, was found guilty of one count of robbery in company, and the appellant, Graham, was found guilty of one count of wounding and one count of robbery in company, with violence and armed with an offensive weapon – where the appellant, Graham, gave evidence that he was defending his partner, Alliston, and himself at the time of the incident – where the trial judge indicated a belief that self-defence should not be left to the jury but did not make a formal ruling – where counsel’s address focused primarily on self-defence – where the trial judge subsequently directed the jury that self-defence was not available and gave counsel an opportunity to further address the jury – where the appellant, Graham, unsuccessfully applied for the jury to be discharged – whether self-defence should have been left to the jury – whether the failure to leave self-defence to the jury in the circumstances amounted to a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – JOINT TRIAL OF SEVERAL PERSONS – where the prosecution indicated that the case against both appellants was being brought pursuant to s 7(1)(c) of the Criminal Code – where the trial judge inadequately directed the jury in relation to the state of mind the prosecution was required to prove for each appellant before they could be found guilty – where the trial judge refused to give redirections on the issue – where the respondent argued that the directions given were adequate for the real case advanced by the prosecutor – where the evidence raised the prospect of material differences between the relevant states of mind of each appellant – whether the failure to adequately direct the jury in relation to s 7 created a miscarriage of justice with the effect that the convictions could not be sustained by the application…

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.

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Details

Case: [2011] QCA 187
Decision Date: 9 August 2011

CaseChat Overview and Summary

In the case of R v Graham and Alliston, the appellants were found guilty of various criminal offences related to an incident involving robbery and assault. Graham was convicted of wounding and robbery in company, with violence and armed with an offensive weapon, while Alliston was convicted of robbery in company. Both appellants lodged appeals against their convictions. The legal issues at hand included whether the trial judge should have left the issue of self-defence to the jury, whether the judge’s directions to the jury regarding the requisite state of mind for each appellant were adequate, and whether an Edwards direction given by the judge was a misdirection.

The court examined whether the trial judge should have allowed the jury to consider the defence of self-defence. The judge had indicated a belief that self-defence should not be left to the jury but did not formally rule on it. The court found that the judge’s indication did not amount to a final ruling, and the defence of self-defence should have been left to the jury. This non-direction resulted in a miscarriage of justice, leading the court to allow the appeal and order a new trial. Additionally, the court found that the trial judge’s directions to the jury regarding the state of mind required for conviction under section 7 of the Criminal Code were inadequate. The directions did not sufficiently address the need to consider the individual states of mind of each appellant, which was critical given the joint trial. This inadequacy also contributed to a miscarriage of justice, necessitating a new trial. Furthermore, the court considered the Edwards direction given by the trial judge regarding the complainant’s alleged assault on Alliston, finding it to be a misdirection that created a miscarriage of justice.

The orders made by the court were to allow both appeals, set aside the convictions, and order new trials for both appellants. In CA No 318 of 2010, the convictions of Graham were set aside, and in CA No 324 of 2010, the conviction of Alliston was set aside. Each appellant was granted a new trial to address the issues identified by the court.

Orders

Orders of the court

Delivered on 1 June 2011:

In CA No 318 of 2010:

1. Appeal allowed.

2. The convictions are set aside.

3. A new trial is ordered.

In CA No 324 of 2010:

1. Appeal allowed.

2. The conviction is set aside.

3. A new trial is ordered.

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 Graham & Alliston [2011] QCA 187
PARTIES:	R v GRAHAM, Jeremy Mark (appellant) R v ALLISTON, Candida Lee-Bianca (appellant/applicant)
FILE NO/S:	CA No 318 of 2010 CA No 324 of 2010 DC No 79 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	Orders delivered on 1 June 2011 Reasons delivered on 9 August 2011
DELIVERED AT:	Brisbane
HEARING DATE:	27 May 2011
JUDGES:	Fraser and Chesterman JJA and Jones J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Delivered on 1 June 2011: In CA No 318 of 2010: 1. Appeal allowed. 2. The convictions are set aside. 3. A new trial is ordered. In CA No 324 of 2010: 1. Appeal allowed. 2. The conviction is set aside. 3. A new trial is ordered.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – CONTROL OF PROCEEDINGS – DISCHARGE OF JURY – where the appellant, Alliston, was found guilty of one count of robbery in company, and the appellant, Graham, was found guilty of one count of wounding and one count of robbery in company, with violence and armed with an offensive weapon – where the appellant, Graham, gave evidence that he was defending his partner, Alliston, and himself at the time of the incident – where the trial judge indicated a belief that self-defence should not be left to the jury but did not make a formal ruling – where counsel’s address focused primarily on self-defence – where the trial judge subsequently directed the jury that self-defence was not available and gave counsel an opportunity to further address the jury – where the appellant, Graham, unsuccessfully applied for the jury to be discharged – whether self-defence should have been left to the jury – whether the failure to leave self-defence to the jury in the circumstances amounted to a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – JOINT TRIAL OF SEVERAL PERSONS – where the prosecution indicated that the case against both appellants was being brought pursuant to s 7(1)(c) of the Criminal Code – where the trial judge inadequately directed the jury in relation to the state of mind the prosecution was required to prove for each appellant before they could be found guilty – where the trial judge refused to give redirections on the issue – where the respondent argued that the directions given were adequate for the real case advanced by the prosecutor – where the evidence raised the prospect of material differences between the relevant states of mind of each appellant – whether the failure to adequately direct the jury in relation to s 7 created a miscarriage of justice with the effect that the convictions could not be sustained by the application…