R v Jobling - [2011] QCA 31

SUPREME COURT OF QUEENSLAND

CITATION:

R v Jobling [2011] QCA 31

PARTIES:

R
v
JOBLING, Scott Andrew
(appellant)

FILE NO/S:

CA No 139 of 2010
SC No 74 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against conviction

ORIGINATING COURT:

Supreme Court at Rockhampton

DELIVERED ON:

4 March 2011

DELIVERED AT:

Brisbane

HEARING DATE:

7 October 2010

JUDGES:

Margaret McMurdo P and White JA and Jones J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal against conviction is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF PROSECUTOR OR PROSECUTION – Where appellant and co-accused were charged together with murder – where separate trials – where co-accused was convicted of murder prior to the appellant's trial for murder – where appellant argued that the trial judge erred in permitting the prosecution to particularise criminal responsibility against him on the basis of s 7(1)(a), s 7(1)(c) or s 7(1)(d) Criminal Code 1899 (Qld) – whether prosecution case offended the doctrine of incontrovertibility – whether it was an abuse of process

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – GENERAL PRINCIPLES – where co-accused's statement to police was admitted as evidence against the appellant – where the judge made a declaration under s 17 Evidence Act 1977 (Qld) – whether the trial judge erred in making that declaration – whether the trial judge erred in admitting the evidence

Criminal Code 1899 (Qld), s 7(1)(a), s 7(1)(b), s 7(1)(c), s 7(1)(d), s 560, s 569
Evidence Act 1977 (Qld), s 17, s 101, s 102

Connelly v Director of Public Prosecutions [1964] AC 1254, cited
Garrett v The Queen (1977) 139 CLR 437; [1977] HCA 67, cited
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57, cited
R v Carroll (2002) 213 CLR 635; [2002] HCA 55, considered
R v Gilham (2007) 73 NSWLR 308; [2007] NSWCCA 323, considered
R v Hinschen[2008] QCA 145, considered
Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42, considered

COUNSEL:

A J Glynn SC for the appellant
M J Copley SC for the respondent

SOLICITORS:

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

MARGARET McMURDO P: Scott Andrew Jobling was originally charged jointly with Beau Ernest Hinschen with murdering Jobling's former partner, Suzanne Cheryl Standing, at Etna Creek near Rockhampton on or about 5 August 2005. Separate trials were ordered on 7 June 2007. The Crown endorsed the indictment jointly charging Jobling and Hinschen that it was not proceeding further against Hinschen on that indictment.

The Crown proceeded first against Hinschen on another indictment charging him with the murder of the deceased. Evidence led at Hinschen's trial was capable of supporting his conviction of murder on the basis that he either actually, at…

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 Jobling

Details

AGLC: R v Jobling [2011] QCA 31
Case: [2011] QCA 31
Decision Date: 4 March 2011

CaseChat Overview and Summary

The case of R v Jobling involved the appellant and a co-accused who were charged with murder and subsequently tried separately. The co-accused had already been convicted of murder prior to the appellant's trial. The appellant challenged the conviction on several grounds, primarily arguing that the trial judge made errors in allowing the prosecution to specify the nature of his criminal responsibility and in admitting certain evidence. Specifically, the appellant contended that the trial judge's decision to permit the prosecution to particularise against him under sections 7(1)(a), 7(1)(c), and 7(1)(d) of the Criminal Code 1899 (Qld) was erroneous and violated the doctrine of incontrovertibility. Additionally, the appellant claimed that the admission of the co-accused's statement to police constituted an abuse of process and that the trial judge's declaration under section 17 of the Evidence Act 1977 (Qld) was incorrect.

The court examined whether the trial judge's decisions regarding the particularisation of criminal responsibility and the admission of evidence were appropriate. The court considered the principles of criminal law relevant to appeals and new trials, including the particular grounds of appeal related to prosecutorial conduct and the general principles of the admission or rejection of evidence. The court also assessed whether the trial judge's actions were an abuse of process and if the prosecution's case adhered to the doctrine of incontrovertibility. Furthermore, the court evaluated the correctness of the trial judge's declaration under the Evidence Act and its impact on the admissibility of the co-accused's statement.

In its decision, the court found that the trial judge did not err in permitting the prosecution to particularise the appellant's criminal responsibility or in admitting the co-accused's statement. The court held that the trial judge's decisions did not constitute an abuse of process and were consistent with the applicable legal principles. Consequently, the appeal against the conviction was dismissed.

Orders

Orders of the court

Appeal against conviction 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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CITATION:	R v Jobling [2011] QCA 31
PARTIES:	R v JOBLING, Scott Andrew (appellant)
FILE NO/S:	CA No 139 of 2010 SC No 74 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against conviction
ORIGINATING COURT:	Supreme Court at Rockhampton
DELIVERED ON:	4 March 2011
DELIVERED AT:	Brisbane
HEARING DATE:	7 October 2010
JUDGES:	Margaret McMurdo P and White JA and Jones J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal against conviction is dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF PROSECUTOR OR PROSECUTION – Where appellant and co-accused were charged together with murder – where separate trials – where co-accused was convicted of murder prior to the appellant's trial for murder – where appellant argued that the trial judge erred in permitting the prosecution to particularise criminal responsibility against him on the basis of s 7(1)(a), s 7(1)(c) or s 7(1)(d) Criminal Code 1899 (Qld) – whether prosecution case offended the doctrine of incontrovertibility – whether it was an abuse of process CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – GENERAL PRINCIPLES – where co-accused's statement to police was admitted as evidence against the appellant – where the judge made a declaration under s 17 Evidence Act 1977 (Qld) – whether the trial judge erred in making that declaration – whether the trial judge erred in admitting the evidence Criminal Code 1899 (Qld), s 7(1)(a), s 7(1)(b), s 7(1)(c), s 7(1)(d), s 560, s 569 Evidence Act 1977 (Qld), s 17, s 101, s 102 Connelly v Director of Public Prosecutions [1964] AC 1254, cited Garrett v The Queen (1977) 139 CLR 437; [1977] HCA 67, cited Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57, cited R v Carroll (2002) 213 CLR 635; [2002] HCA 55, considered R v Gilham (2007) 73 NSWLR 308; [2007] NSWCCA 323, considered R v Hinschen[2008] QCA 145, considered Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42, considered
COUNSEL:	A J Glynn SC for the appellant M J Copley SC for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent