R v Hardy - [2010] QCA 28

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hardy [2010] QCA 28

PARTIES:

R
v
HARDY, Pamela Claire
(appellant)

FILE NO/S:

CA No 308 of 2009
DC No 3026 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence – Delivery of Reasons

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

Orders delivered 19 February 2010
Reasons delivered 26 February 2010

DELIVERED AT:

Brisbane

HEARING DATE:

19 February 2010

JUDGE:

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

ORDERS:

Delivered ex tempore 19 February 2010:

1.   The appeal against conviction for counts 1, 2 and 3 of the indictment be allowed;

2.   The convictions be set aside;

3.   A retrial of the offences for counts 1, 2 and 3 be ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION AND SENTENCE – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – CONSIDERATION OF SUMMING UP AS A WHOLE – where appellant convicted of three counts of seriously assaulting a police officer acting in execution of his duty – where all counts occurred after the police officer had handcuffed the appellant – where trial judge engaged in extensive discussion with jury – adequacy of directions –– failure to link directions on law to the evidence – whether trial judge misdirected jury – whether summing-up otherwise apt to confuse – whether appellant denied procedural fairness

Criminal Code 1899 (Qld), s 254, s 271
Police Powers and Responsibilities Act 2000 (Qld), s 365
Transport Operations (Road Use Management) Act 1995 (Qld), s 80(2), s 80(3)

Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34, cited
Howe v R (1980) 32 ALR 478; (1980) 55 ALJR 5, cited
Morris v Beardmore [1981] AC 446; [1980] 2 All ER 753, cited
Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20, cited
R v Patience (1837) 7 C&P 775; (1837) 173 ER 338; [1837] EngR 545, cited
R v Turner [1962] VR 30, cited
R v Whalley (1835) 7 C&P 245; (1835) 173 ER 108; [1835] EngR 909, cited
Wiltshire v Barrett [1966] 1 QB 312; [1965] 2 All ER 271, cited

COUNSEL:

J Sharp for the appellant
G Cummings for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

MUIR JA: The appellant was convicted on 12 November 2009 after a trial of three counts of seriously assaulting a police officer acting in the execution of his duty and acquitted of a fourth such count. She appeals against her convictions on the grounds discussed below which, on the hearing of the appeal, were substituted by leave for the existing grounds.

The relevant evidence

It will be useful to give a brief account of the evidence before discussing the grounds of appeal. There were three witnesses, Senior Constable Singh, the complainant, Constable Cameron, who was…

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 Hardy

Details

AGLC: R v Hardy [2010] QCA 28
Case: [2010] QCA 28
Decision Date: 19 February 2010

CaseChat Overview and Summary

In the case of R v Hardy, the appellant stood convicted of three counts of seriously assaulting a police officer, each offence occurring while the officer had handcuffed the appellant. The trial judge delivered an extensive summation to the jury, which the appellant challenged on appeal. The Court of Appeal was required to determine whether the trial judge had misdirected the jury, failed to adequately link legal directions to the evidence, and whether the summing up was apt to confuse the jury, thus denying the appellant procedural fairness.

The Court of Appeal examined the trial judge's directions to the jury and found that while the trial judge engaged in an extensive discussion with the jury, there was a failure to sufficiently link the legal directions to the evidence presented. The court concluded that this misdirection was significant enough to potentially affect the outcome of the trial. Furthermore, the summing up, when considered as a whole, was found to be potentially confusing and may have misdirected the jury on critical aspects of the law.

The Court of Appeal held that the misdirection and potential confusion in the summing up warranted the allowance of the appeal against conviction. Consequently, the convictions were set aside, and a retrial of the offences was ordered. The court found that the trial judge's directions and the summing up, when viewed in their entirety, did not provide the jury with a clear understanding of the applicable legal principles, thus compromising the fairness of the trial. The orders of the Court of Appeal mandated the setting aside of the convictions and the ordering of a retrial for the offences in question.

Orders

Orders of the court

Delivered ex tempore 19 February 2010:

1. The appeal against conviction for counts 1, 2 and 3 of the indictment be allowed;

2. The convictions be set aside;

3. A retrial of the offences for counts 1, 2 and 3 be ordered.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Hardy [2010] QCA 28
PARTIES:	R v HARDY, Pamela Claire (appellant)
FILE NO/S:	CA No 308 of 2009 DC No 3026 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence – Delivery of Reasons
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	Orders delivered 19 February 2010 Reasons delivered 26 February 2010
DELIVERED AT:	Brisbane
HEARING DATE:	19 February 2010
JUDGE:	Muir, Fraser and Chesterman JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Delivered ex tempore 19 February 2010: 1. The appeal against conviction for counts 1, 2 and 3 of the indictment be allowed; 2. The convictions be set aside; 3. A retrial of the offences for counts 1, 2 and 3 be ordered.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION AND SENTENCE – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – CONSIDERATION OF SUMMING UP AS A WHOLE – where appellant convicted of three counts of seriously assaulting a police officer acting in execution of his duty – where all counts occurred after the police officer had handcuffed the appellant – where trial judge engaged in extensive discussion with jury – adequacy of directions –– failure to link directions on law to the evidence – whether trial judge misdirected jury – whether summing-up otherwise apt to confuse – whether appellant denied procedural fairness Criminal Code 1899 (Qld), s 254, s 271 Police Powers and Responsibilities Act 2000 (Qld), s 365 Transport Operations (Road Use Management) Act 1995 (Qld), s 80(2), s 80(3) Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34, cited Howe v R (1980) 32 ALR 478; (1980) 55 ALJR 5, cited Morris v Beardmore [1981] AC 446; [1980] 2 All ER 753, cited Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20, cited R v Patience (1837) 7 C&P 775; (1837) 173 ER 338; [1837] EngR 545, cited R v Turner [1962] VR 30, cited R v Whalley (1835) 7 C&P 245; (1835) 173 ER 108; [1835] EngR 909, cited Wiltshire v Barrett [1966] 1 QB 312; [1965] 2 All ER 271, cited
COUNSEL:	J Sharp for the appellant G Cummings for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent