R v Johnson & Honeysett - [2013] QCA 91

SUPREME COURT OF QUEENSLAND

CITATION:

R v Johnson & Honeysett [2013] QCA 91

PARTIES:

R
v
JOHNSON, Richard
(appellant)

R
v
HONEYSETT, James Terrence Robert
(appellant)

FILE NO/S:

CA No 251 of 2012
CA No 252 of 2012
DC No 1412 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Appeals against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

23 April 2013

DELIVERED AT:

Brisbane

HEARING DATE:

9 April 2013

JUDGES:

Holmes and Fraser JJA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    The appeals are allowed.

2.    The convictions are set aside.

3.    A retrial is ordered on both counts.

CATCHWORDS:

APPEAL AND NEW TRIAL – NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MIS-DIRECTION OR NON-DIRECTION – DIRECTIONS AS TO PARTICULAR MATTERS – where the appellants were both convicted of one count of assault occasioning bodily harm in company, and where the appellant, Honeysett, was convicted of a further count of assault occasioning bodily harm – where at trial, evidence given by the complainant was inconsistent with that of a second Crown witness, which was favourable to the appellants - where on appeal, the appellants contended that the trial judge misstated the test to be applied by the jury when comparing inconsistent evidence of witnesses – where the trial judge, in summing-up, suggested to the jury that it was possible that they might not accept either witness' account, but went on to suggest that a finding that the second witness was not as reliable would dispose them to accepting the evidence of the complainant – whether the jury should have been directed that if they were left in doubt as to which version of the evidence was correct, they should acquit the appellants – whether the jury should have been directed that if the evidence of the second witness left them with a reasonable doubt they should acquit – whether a miscarriage of justice occurred

APPEAL AND NEW TRIAL – NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MIS-DIRECTION OR NON-DIRECTION – DIRECTIONS AS TO PARTICULAR MATTERS – where the appellants were both convicted of one count of assault occasioning bodily harm in company – where the appellant Honeysett contended that the trial judge had misdirected the jury as to the temporal relationship between the facts underlying that count and what could be heard on an audio recording of the incident – where the trial judge told the jury that they might think that what was heard at a particular point of the recording were the events underlying the count – whether, if any error in view conveyed by the trial judge to the jury, it was material – whether the statement rose above the level of permissible comment – whether a miscarriage of justice occurred

Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66, considered
R v Booth[2005] QCA 30

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 Johnson & Honeysett

Details

AGLC: R v Johnson & Honeysett [2013] QCA 91
Case: [2013] QCA 91
Decision Date: 23 April 2013

CaseChat Overview and Summary

In the matter of R v Johnson & Honeysett, the appellants were convicted in the lower court of assault occasioning bodily harm in company, with Honeysett also convicted of a further count of assault occasioning bodily harm. The case came before the court on appeal, with the appellants arguing that the trial judge had misstated the test for comparing inconsistent evidence of witnesses. Specifically, they claimed that the trial judge suggested to the jury that it was possible they might not accept either witness' account but also suggested that finding the second witness less reliable would dispose them to accept the complainant's evidence. The appellants contended that the jury should have been directed that if they were left in doubt as to which version of the evidence was correct, they should acquit the appellants. They also argued that the jury should have been directed that if the evidence of the second witness left them with a reasonable doubt, they should acquit.

The court examined the trial judge's summing-up and found that there was indeed a misdirection in the form of an incomplete statement of the law. The court held that if the jury was left in doubt as to which version of the evidence was correct, they should have been directed to acquit the appellants. Additionally, the court found that the trial judge's comment on the temporal relationship between the facts underlying the count and what could be heard on an audio recording of the incident was not an error of law but rather a permissible comment. However, the court held that this comment did not amount to a miscarriage of justice.

The court allowed the appeals, set aside the convictions, and ordered a retrial on both counts. The court found that the misdirection by the trial judge was material and that it led to a miscarriage of justice. Therefore, the convictions were set aside, and a retrial was ordered to ensure that the appellants received a fair trial.

Orders

Orders of the court

1. The appeals are allowed.

2. The convictions are set aside.

3. A retrial is ordered on both counts.

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 Johnson & Honeysett [2013] QCA 91
PARTIES:	R v JOHNSON, Richard (appellant) R v HONEYSETT, James Terrence Robert (appellant)
FILE NO/S:	CA No 251 of 2012 CA No 252 of 2012 DC No 1412 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Appeals against Conviction
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	23 April 2013
DELIVERED AT:	Brisbane
HEARING DATE:	9 April 2013
JUDGES:	Holmes and Fraser JJA and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The appeals are allowed. 2. The convictions are set aside. 3. A retrial is ordered on both counts.
CATCHWORDS:	APPEAL AND NEW TRIAL – NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MIS-DIRECTION OR NON-DIRECTION – DIRECTIONS AS TO PARTICULAR MATTERS – where the appellants were both convicted of one count of assault occasioning bodily harm in company, and where the appellant, Honeysett, was convicted of a further count of assault occasioning bodily harm – where at trial, evidence given by the complainant was inconsistent with that of a second Crown witness, which was favourable to the appellants - where on appeal, the appellants contended that the trial judge misstated the test to be applied by the jury when comparing inconsistent evidence of witnesses – where the trial judge, in summing-up, suggested to the jury that it was possible that they might not accept either witness' account, but went on to suggest that a finding that the second witness was not as reliable would dispose them to accepting the evidence of the complainant – whether the jury should have been directed that if they were left in doubt as to which version of the evidence was correct, they should acquit the appellants – whether the jury should have been directed that if the evidence of the second witness left them with a reasonable doubt they should acquit – whether a miscarriage of justice occurred APPEAL AND NEW TRIAL – NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MIS-DIRECTION OR NON-DIRECTION – DIRECTIONS AS TO PARTICULAR MATTERS – where the appellants were both convicted of one count of assault occasioning bodily harm in company – where the appellant Honeysett contended that the trial judge had misdirected the jury as to the temporal relationship between the facts underlying that count and what could be heard on an audio recording of the incident – where the trial judge told the jury that they might think that what was heard at a particular point of the recording were the events underlying the count – whether, if any error in view conveyed by the trial judge to the jury, it was material – whether the statement rose above the level of permissible comment – whether a miscarriage of justice occurred Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66, considered R v Booth[2005] QCA 30