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 2010DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
Appeal against Conviction & SentenceORIGINATING COURT:
District Court at Townsville
DELIVERED ON:
Orders delivered on 1 June 2011
Reasons delivered on 9 August 2011DELIVERED 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 madeORDERS:
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…
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- Case
- [2011] QCA 187
- Decision Date
CaseChat Overview and Summary
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.