R v Hayward - [2019] QCA 91

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hayward [2019] QCA 91

PARTIES:

R
v
HAYWARD, Jamie Mark
(appellant)

FILE NO/S:

CA No 203 of 2018
DC No 2869 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 1 August 2018 (Everson DCJ)

DELIVERED ON:

21 May 2019

DELIVERED AT:

Brisbane

HEARING DATE:

5 March 2019

JUDGES:

Gotterson and McMurdo JJA and Bradley J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – INDECENT ASSAULT AND RELATED OFFENCES – INDECENT – where the appellant and the complainant were both serving police officers – where the appellant grabbed the complainant’s left breast while the appellant walked past the complainant who was in a conversation with her colleagues – where the appellant contended that he thought he was grabbing another male colleague who was standing next to the complainant – where the learned trial judge directed the jury as to mistake of fact under s 24(1) of the Criminal Code – where the learned trial judge also directed the jury about the elements of the indecent assault offence, including the meaning of indecency – where neither counsel asked for redirections – where, on appeal, the appellant argued that the learned trial judge should have given a direction to the jury on the meaning of indecency as being indecent if the appellant’s intention was to touch the complainant’s breast – whether the learned trial judge made an error of law in directing the jury – whether there was a miscarriage of justice in failing to provide the direction proposed by the appellant

Criminal Code (Qld), s 24(1), s 352(1)(a)

R v Jones (2011) 209 A Crim R 379; [2011] QCA 19, considered

COUNSEL:

J McInnes for the appellant
C N Marco for the respondent

SOLICITORS:

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

GOTTERSON JA: At a trial over two days in the District Court at Brisbane, the appellant, Jamie Mark Hayward, was, on 1 August 2018, found guilty of an offence against s 352(1)(a) of the Criminal Code (Qld). The count in the indictment alleged that on the 21 April 2017 at Hillcrest, the appellant unlawfully and indecently assaulted the complainant.
Following upon the delivery of the verdict, the appellant was convicted and sentenced to imprisonment for three months. The term of imprisonment was suspended forthwith for an operational period of 12 months.
On 6 August 2018, the appellant filed a Form 26 by which he appealed to this Court against the conviction and applied for leave to appeal against sentence.[1] The application for leave was abandoned on 27 February 2019.
[1]AB 1 1-3.
Evidence of the circumstances of the alleged offending
Prosecution case: The appellant and the complainant were both serving police officers. At the time of the alleged offending, they…

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 Hayward

Details

AGLC: R v Hayward [2019] QCA 91
Case: [2019] QCA 91
Decision Date: 21 May 2019

CaseChat Overview and Summary

The appellant appealed against his conviction for indecent assault, arguing that the trial judge erred in failing to direct the jury on the meaning of indecency as being indecent if the appellant's intention was to touch the complainant’s breast. The case arose from an incident where the appellant, while passing by the complainant who was engaged in conversation with colleagues, grabbed her left breast. The appellant claimed that he mistook the complainant for another male colleague. The jury found the appellant guilty, and the appellant subsequently appealed against the conviction.

The central legal issue in the appeal was whether the trial judge's directions to the jury regarding the elements of the indecent assault offence, including the meaning of indecency, were sufficient. The appellant argued that the trial judge should have provided a specific direction on the meaning of indecency, focusing on the appellant's intention to touch the complainant’s breast. The court had to determine whether the trial judge's directions constituted an error of law and whether this error led to a miscarriage of justice.

The court examined the trial judge's directions and noted that while the trial judge had addressed the concept of mistake of fact under s 24(1) of the Criminal Code, no specific direction was given on the meaning of indecency in the context of the appellant's intention. The court held that the trial judge's overall directions were sufficient to enable the jury to understand the elements of the offence and to apply the law correctly. The court concluded that the omission of the specific direction on indecency did not constitute an error of law that resulted in a miscarriage of justice. Therefore, the appeal was dismissed.

The final orders of the court were that the appeal against the conviction be dismissed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

On 6 August 2018, the appellant filed a Form 26 by which he appealed to this Court against the conviction and applied for leave to appeal against sentence.[1] The application for leave was abandoned on 27 February 2019.[1]AB 1 1-3.Evidence of the circumstances of the alleged offending Prosecution case: The appellant and the complainant were both serving police officers. At the time of the alleged offending, they were both based at the Browns Plains Police Station. The complainant described the relationship between them as being “purely professional”.[2][2]AB 2 10 Tr1-10 ll19-20. The complainant gave evidence that she returned to the station just before 4 pm on 21 April 2017. She entered the station through a side entrance and walked through the hallway to the shift supervisor’s area. She and other police officers began a conversation in that area.[3][3]Ibid ll31-46. There was a cell at the station. It backed onto the rear of the shift supervisor’s area. According to the complainant, she was “lent up against the cell wall”. Senior Constable Luke Konstantinos was to her left “up against the wall”. Senior Constable Rebecca Hall was standing in front of the complainant and to her left. Senior Constable Natalie Cole was seated at the shift supervisor’s desk and Acting Senior Sergeant Shane Clark was to the complainant’s right. The latter three were facing the complainant and Senior Constable Konstantinos.[4][4]AB 2 11 Tr1-11 ll1-20; Exhibit 1: AB 2 107. The complainant testified that as the conversation was progressing, she became aware that the appellant was in the day room which she indicated was to her rear left. The appellant walked from the day room and moved from the complainant’s right to her left through the group of officers in conversation. There was no interaction between the complainant and the appellant.[5][5]AB 2 12 Tr1-12 ll29-47. The conversation continued. Next, the complainant became aware that the appellant was walking back through the group. When he was “directly in front” of her, she saw him reach out with his right hand and grab her left breast with a “pinch” motion. She felt the front part of her breast near the nipple being squeezed.[6][6]AB 2 13 Tr1-13 ll1-26. The complainant said that she was shocked and went red with embarrassment. She stood back against the wall and turned to the appellant. She swore at him. He continued to walk on to the day room. Almost immediately, he said: “I’m sorry… I thought you were Luke.”[7][7]Ibid ll25-36; AB 2 15 Tr1-15 ll34-37. Evidence was led from the complainant and Senior Constable Konstantinos as to how they differed in physical appearance, including height. The complainant was 165 to 167 centimetres tall.[8] Senior Constable Konstantinos was 172 centimetres tall.[9] Also, CCTV footage depicting the area at the time was tendered.[10][8]AB 2 10 Tr1-10 l10.[9]AB 2 25 Tr1-25 l14.[10]Exhibit 3. The other police officers present gave evidence that was largely mutually consistent. Acting Senior Sergeant Clark said that the appellant paused “for a very short second” before he made contact with the complainant.[11] The appellant was looking in his own direction of travel at the time of contact.[12] The complainant’s evidence that she protested and that the appellant said that he thought that she was Senior Constable Konstantinos was supported.[13][11]AB 2 37 Tr1-37 ll23-24.[12]AB 2 40 Tr1-40 ll30-31.[13]For example, at AB 2 24 Tr1-24 ll22-27 and AB 2 37 Tr1-37 ll31-39.

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 Hayward [2019] QCA 91
PARTIES:	R v HAYWARD, Jamie Mark (appellant)
FILE NO/S:	CA No 203 of 2018 DC No 2869 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 1 August 2018 (Everson DCJ)
DELIVERED ON:	21 May 2019
DELIVERED AT:	Brisbane
HEARING DATE:	5 March 2019
JUDGES:	Gotterson and McMurdo JJA and Bradley J
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – INDECENT ASSAULT AND RELATED OFFENCES – INDECENT – where the appellant and the complainant were both serving police officers – where the appellant grabbed the complainant’s left breast while the appellant walked past the complainant who was in a conversation with her colleagues – where the appellant contended that he thought he was grabbing another male colleague who was standing next to the complainant – where the learned trial judge directed the jury as to mistake of fact under s 24(1) of the Criminal Code – where the learned trial judge also directed the jury about the elements of the indecent assault offence, including the meaning of indecency – where neither counsel asked for redirections – where, on appeal, the appellant argued that the learned trial judge should have given a direction to the jury on the meaning of indecency as being indecent if the appellant’s intention was to touch the complainant’s breast – whether the learned trial judge made an error of law in directing the jury – whether there was a miscarriage of justice in failing to provide the direction proposed by the appellant Criminal Code (Qld), s 24(1), s 352(1)(a) R v Jones (2011) 209 A Crim R 379; [2011] QCA 19, considered
COUNSEL:	J McInnes for the appellant C N Marco for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent