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R v Hooker and Solomon

R v Hooker and Solomon

Case [2015] QCA 182 2 October 2015

Appeal

Verdict Unreasonable

Identification Evidence

Admissibility of Evidence

Duplicitous Charges

Criminal Law

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Hooker & Solomon [2015] QCA 182

PARTIES:

In CA No 313 of 2014:

R
v
HOOKER, Ean James
(appellant)

In CA No 322 of 2014:

R
v
SOLOMON, Jacob Jia
(appellant)

FILE NOS:

CA No 313 of 2014
CA No 322 of 2014
DC No 188 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Appeals against Conviction

ORIGINATING COURT:

District Court at Townsville – Unreported, 24 November 2014

DELIVERED ON:

2 October 2015

DELIVERED AT:

Brisbane

HEARING DATE:

26 May 2015

JUDGES:

Holmes CJ and Henry and North JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The appeal against conviction of the appellant, Hooker, is allowed.

2.   The verdict of guilty for the appellant, Hooker, is set aside, and a verdict of acquittal is entered on Count 1.

3.   The appeal against conviction of the appellant, Solomon, is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant Hooker was convicted of one count of grievous bodily harm – where the only evidence of his assaulting the complainant came from a witness who, under cross examination, volunteered that Hooker might merely have been a bystander – where another witness gave evidence that Hooker was standing beside her during the incident – whether the verdict was unreasonable

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant Solomon was convicted of one count of grievous bodily harm – where the complainant gave evidence that he thought his jaw had been broken by punches delivered by a short, round Aboriginal man – where the complainant identified a picture of Solomon from a photo board as the man who had punched him – where Solomon contended that the complainant’s identification of him was equivocal and that no other witness described the assault as the complainant did – where Solomon contended that there was a reasonable possibility that a different assault broke the complainant’s jaw – whether the verdict was unreasonable

CRIMINAL LAW – EVIDENCE – IDENTIFICATION EVIDENCE – WARNING ADVISABLE OR REQUIRED – ADEQUACY OF WARNING – GENERALLY – where the appellant Solomon was convicted of one count of grievous bodily harm – where the complainant identified a picture of Solomon from a photo board as the man who had punched him – where Solomon argues that the identification direction given by the trial judge was inadequate as it did not conform to the requirements identified in Domican v The Queen (1992) 173 CLR 555 – where the defence case at trial was not put on the basis of wrong identification, but raised an issue as to whether Solomon’s assault was such as to cause the grievous bodily harm – whether the direction was inadequate – whether there was a miscarriage of justice

CRIMINAL LAW – PROCEDURE – INFORMATION, INDICTMENT OR PRESENTMENT –…

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 Hooker and Solomon

Details

AGLC: R v Hooker and Solomon [2015] QCA 182
Case: [2015] QCA 182
Decision Date: 2 October 2015

CaseChat Overview and Summary

In the matter of R v Hooker and Solomon, the respondents, Hooker and Solomon, appealed their convictions for grievous bodily harm. The appeal was heard in the High Court of Australia. The primary issue before the court was whether the verdicts against Hooker and Solomon were unreasonable or insupportable considering the evidence presented at trial. Regarding Hooker, the court had to determine if the evidence was sufficient to convict him of the assault when the only witness to the event suggested he might not have been the perpetrator. Solomon's appeal hinged on whether the identification of him by the complainant was reliable and whether there was a reasonable possibility that another assault could have caused the grievous bodily harm. Additionally, the court examined whether the direction given by the trial judge concerning the identification evidence was adequate and whether there was latent duplicity in the charge against Solomon.

The court considered the evidence against Hooker, finding that the witness's cross-examination suggested Hooker might have been a bystander, and another witness testified that Hooker was standing beside her during the incident, not participating in the assault. The court concluded that the evidence was insufficient to support Hooker's conviction and allowed his appeal. Regarding Solomon, the court found that the identification evidence, while equivocal, was not so unreliable as to render the verdict unreasonable. The court also determined that the trial judge's direction on the identification evidence was adequate and that there was no latent duplicity in the charge against Solomon.

The High Court allowed Hooker's appeal and set aside his conviction, entering a verdict of acquittal on Count 1. Solomon's appeal was dismissed, and his conviction was upheld. The court's decision was based on the sufficiency of the evidence against each appellant and the adequacy of the trial judge's directions on identification evidence. The final orders included setting aside Hooker's conviction and entering a verdict of acquittal, while dismissing Solomon's appeal and maintaining his conviction.

Orders

Orders of the court

1. The appeal against conviction of the appellant, Hooker, is allowed.

2. The verdict of guilty for the appellant, Hooker, is set aside, and a verdict of acquittal is entered on Count 1.

3. The appeal against conviction of the appellant, Solomon, is dismissed.

Background

Background to the litigation

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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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Citations

R v Hooker and Solomon [2015] QCA 182

Most Recent Citation

Timothy Michael Kelly v Queensland Police Service [2021] QDC 315

Cases Citing This Decision

Timothy Michael Kelly v Queensland Police Service [2021] QDC 315
Citation 1 (Para 3)

…avail himself or herself, if the need should arise, of a plea of autrefois acquit or autrefois convict. [14] At 284. See also R v Hooker & Solomon [2015] QCA 182, at [35].…

See all citing cases →

Cases Cited

R v Fowler [2012] QCA 258
Citation 1 (Para 10)

…acts and, effectively, the Crown case was that each appellant committed three separate assaults. The indictment was, in consequence, duplicitous. [17][2012] QCA 258.…
R v Urbano [2011] QCA 96
Citation 2 (Para 4)

…h was open to the jury to accept”.[10] [6]See e.g. Festa v The Queen (2001) 208 CLR 593 per Gleeson CJ at 600. [7](2006) 175 A Crim R 1. [8][2011] QCA 96 at [79]. [9][2004] QCA 488. [10]At [19].…
Skaf v R [2008] NSWCCA 303
Citation 3 (Para 5)

…[2002] SASC 165 at [33], [63]. [12](2004) 144 A Crim R 215 at [80], [102] and [132]. [13][2002] VSCA 17 at [77] – [78]. [14](2006) 13 VR 225. [15][2008] NSWCCA 303. [16][2004] NSWCCA 62.…
R v Evan [2006] QCA 527
Citation 4

…QCA 488, considered R v Evan, Robu and Bivolaru (2006) 175 A Crim R 1; [2006] QCA 527 , cited R v Fowler; R v Aplin (2012) 225 A Crim R 226; [2012] QCA 258, considered R v Razzak [2004] NSWCCA 62, considered R v Rich (No 2) (2002) 4 VR 155; [2002] VSCA 17, considered R v Spero (2006) 13 VR 225; [2006] VSCA 58, c…
R v Spero [2006] VSCA 58
Citation 5

…(2002) 4 VR 155; [2002] VSCA 17, considered R v Spero (2006) 13 VR 225; [2006] VSCA 58, considered R v Trifyllis [1998] QCA 416 , cited S v The Queen (1989) 168 CLR 266; [1989] HCA 66, applied Skaf v The Queen [2008] NSWCCA 303, considered COUNSEL: F Richards for the appellant, Hooker J Trevino for the appellant,…
R v Clapson [2004] QCA 488
Citation 6 (Para 4)

…accept”.[10] [6]See e.g. Festa v The Queen (2001) 208 CLR 593 per Gleeson CJ at 600. [7](2006) 175 A Crim R 1. [8][2011] QCA 96 at [79]. [9][2004] QCA 488. [10]At [19].…
R v Razzak [2004] NSWCCA 62
Citation 7 (Para 5)

…, [63]. [12](2004) 144 A Crim R 215 at [80], [102] and [132]. [13][2002] VSCA 17 at [77] – [78]. [14](2006) 13 VR 225. [15][2008] NSWCCA 303. [16][2004] NSWCCA 62.…
The Queen v Shane Edmund Johnson [2003] ACTSC 78
Citation 8 (Para 4)

…evidence, be considered having regard to the whole of the evidence which was open to the jury to accept”.[10] [6]See e.g. Festa v The Queen (2001) 208 CLR 593 per Gleeson CJ at 600. [7](2006) 175 A Crim R 1. [8][2011] QCA 96 at [79]. [9][2004] QCA 488. [10]At [19].…
R v Coxon [2002] SASC 165
Citation 9 (Para 5)

…f a stabbing victim’s identification of the accused as his assailant, but it had not deprived the applicant of the opportunity of an acquittal. [11][2002] SASC 165 at [33], [63]. [12](2004) 144 A Crim R 215 at [80], [102] and [132]. [13][2002] VSCA 17 at [77] – [78]. [14](2006) 13 VR 225. [15][2008] NSWCCA 303. [1…
Festa v The Queen [2001] HCA 72
Citation 10

…LR 555; [1992] HCA 13, considered Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72, considered M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited R v Clapson [2004] QCA 488, considered R v Evan, Robu and Bivolaru (2006) 175 A Crim R 1; [2006] QCA 527 , cited R v Fowler; R v Aplin (2012) 225 A Crim R 226;…
S v The Queen [2001] HCATrans 176
Citation 11 (Para 15)

…no risk that they might convict Solomon on the basis of some other incident, and there was no room for confusion about what their verdict meant. [19](1989) 168 CLR 266 at 284-5. Orders…
R v Trifyllis [1998] QCA 416
Citation 12 (Para 12)

…appeal in fact concerned “one episode described a little differently by various witnesses”. There was no latent duplicity in the indictment. [18][1998] QCA 416. Conclusions on the latent duplicity ground…
M v the Queen [1994] HCA 63
Citation 13

…08 CLR 593; [2001] HCA 72, considered M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited R v Clapson [2004] QCA 488, considered R v Evan, Robu and Bivolaru (2006) 175 A Crim R 1; [2006] QCA 527 , cited R v Fowler; R v Aplin (2012) 225 A Crim R 226; [2012] QCA 258, considered R v Razzak [2004] NSWCCA 62, cons…
Domican v The Queen [1991] HCATrans 357
Citation 14

…ion given by the trial judge was inadequate as it did not conform to the requirements identified in Domican v The Queen (1992) 173 CLR 555 – where the defence case at trial was not put on the basis of wrong identification, but raised an issue as to whether Solomon’s assault was such as to cause the grievous bodily harm – whe…

Legislation Cited

No legislation cited in this judgment.

CITATION:	R v Hooker & Solomon [2015] QCA 182
PARTIES:	In CA No 313 of 2014: R v HOOKER, Ean James (appellant) In CA No 322 of 2014: R v SOLOMON, Jacob Jia (appellant)
FILE NOS:	CA No 313 of 2014 CA No 322 of 2014 DC No 188 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	Appeals against Conviction
ORIGINATING COURT:	District Court at Townsville – Unreported, 24 November 2014
DELIVERED ON:	2 October 2015
DELIVERED AT:	Brisbane
HEARING DATE:	26 May 2015
JUDGES:	Holmes CJ and Henry and North JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The appeal against conviction of the appellant, Hooker, is allowed. 2. The verdict of guilty for the appellant, Hooker, is set aside, and a verdict of acquittal is entered on Count 1. 3. The appeal against conviction of the appellant, Solomon, is dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant Hooker was convicted of one count of grievous bodily harm – where the only evidence of his assaulting the complainant came from a witness who, under cross examination, volunteered that Hooker might merely have been a bystander – where another witness gave evidence that Hooker was standing beside her during the incident – whether the verdict was unreasonable CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant Solomon was convicted of one count of grievous bodily harm – where the complainant gave evidence that he thought his jaw had been broken by punches delivered by a short, round Aboriginal man – where the complainant identified a picture of Solomon from a photo board as the man who had punched him – where Solomon contended that the complainant’s identification of him was equivocal and that no other witness described the assault as the complainant did – where Solomon contended that there was a reasonable possibility that a different assault broke the complainant’s jaw – whether the verdict was unreasonable CRIMINAL LAW – EVIDENCE – IDENTIFICATION EVIDENCE – WARNING ADVISABLE OR REQUIRED – ADEQUACY OF WARNING – GENERALLY – where the appellant Solomon was convicted of one count of grievous bodily harm – where the complainant identified a picture of Solomon from a photo board as the man who had punched him – where Solomon argues that the identification direction given by the trial judge was inadequate as it did not conform to the requirements identified in Domican v The Queen (1992) 173 CLR 555 – where the defence case at trial was not put on the basis of wrong identification, but raised an issue as to whether Solomon’s assault was such as to cause the grievous bodily harm – whether the direction was inadequate – whether there was a miscarriage of justice CRIMINAL LAW – PROCEDURE – INFORMATION, INDICTMENT OR PRESENTMENT –…