R v Johnston - [2013] QCA 257

SUPREME COURT OF QUEENSLAND

CITATION:

R v Johnston [2013] QCA 257

PARTIES:

R
v
JOHNSTON, Jacob Prebble
(appellant)

FILE NO/S:

CA No 65 of 2013
DC No 1749 of 2012
DC No 1993 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

13 September 2013

DELIVERED AT:

Brisbane

HEARING DATE:

28 August 2013

JUDGES:

Muir and Gotterson JJA and North J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – GENERAL PRINCIPLES – where the appellant was convicted of two counts of aggravated robbery and one count of aggravated burglary – where the defence case was conducted such as to cast imputations on the character and honesty of two of the prosecution’s most important witnesses – where there was also an implicit suggestion of impropriety on the part of a police officer involved in the investigation – where the trial judge permitted cross-examination of the appellant in relation to a previous conviction for aggravated robbery pursuant to s 15(2) of the Evidence Act 1977 (Qld) – where the appellant submits that the trial judge did not weigh the prejudicial effect to the defence case of the disclosure of the appellant’s previous conviction against the cumulative detriment to the prosecution case by the manner in which the defence case was conducted – whether the trial judge erred in permitting cross-examination of the appellant in relation to his previous conviction – whether there was a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the trial judge repeated a factual statement by the prosecutor that a co-offender, Ms Kaukau, who did not give evidence at trial, had pleaded guilty to the offence – where, in cross-examination, another co-offender, Ms McLean, agreed that when she was sentenced Ms Kaukau was sitting next to her in the dock – where there the appellant contends that there was no direct or indirect evidence about any plea by Ms Kaukau – where the appellant submits that the trial judge erred in failing to give a warning in relation to the apparent plea by Ms Kaukau – where the respondent submits that the trial judge’s implicit reference to Ms Kaukau’s plea did not advance the undisputed position that Ms Kaukau had been identified by one of the complainants as a co-offender – whether a miscarriage of justice occurred

Evidence Act 1977 (Qld), s 15(2)

Matusevich v The Queen (1977) 137 CLR 633; [1977] HCA 30, cited
Phillips v The Queen (1985) 159 CLR 45; [1985] HCA 79, cited
R v Brown [1960] VR 382; [1960] VicRp 62, cited
R v SCA [2002] 2 Qd R 70; [2001] QCA 199, considered

COUNSEL:

D Shepherd for the appellant
P J…

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 Johnston

Details

AGLC: R v Johnston [2013] QCA 257
Case: [2013] QCA 257
Decision Date: 13 September 2013

CaseChat Overview and Summary

In the case of R v Johnston, the appellant contested his conviction on two counts of aggravated robbery and one count of aggravated burglary. The appellant was dissatisfied with the trial judge's decisions to allow cross-examination regarding a prior conviction for aggravated robbery and to permit a reference to a co-offender's alleged guilty plea. The appellant contended these decisions led to a miscarriage of justice.

The primary legal issues involved whether the trial judge erred in permitting the cross-examination of the appellant about a previous conviction and whether the judge's failure to warn about the co-offender's alleged plea amounted to a miscarriage of justice. The appellant argued that the prejudicial impact of the previous conviction and the lack of direct evidence regarding the co-offender's plea were significant errors.

The court found that the trial judge did not err in allowing cross-examination about the previous conviction, as it was relevant and necessary to counter the defence's imputations on the prosecution witnesses. The court also determined that the trial judge's reference to the co-offender's plea did not prejudice the appellant as it was consistent with the evidence presented. The court concluded that the trial judge's decisions did not result in a miscarriage of justice, and the appeal was dismissed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

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 Johnston [2013] QCA 257
PARTIES:	R v JOHNSTON, Jacob Prebble (appellant)
FILE NO/S:	CA No 65 of 2013 DC No 1749 of 2012 DC No 1993 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	13 September 2013
DELIVERED AT:	Brisbane
HEARING DATE:	28 August 2013
JUDGES:	Muir and Gotterson JJA and North J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – GENERAL PRINCIPLES – where the appellant was convicted of two counts of aggravated robbery and one count of aggravated burglary – where the defence case was conducted such as to cast imputations on the character and honesty of two of the prosecution’s most important witnesses – where there was also an implicit suggestion of impropriety on the part of a police officer involved in the investigation – where the trial judge permitted cross-examination of the appellant in relation to a previous conviction for aggravated robbery pursuant to s 15(2) of the Evidence Act 1977 (Qld) – where the appellant submits that the trial judge did not weigh the prejudicial effect to the defence case of the disclosure of the appellant’s previous conviction against the cumulative detriment to the prosecution case by the manner in which the defence case was conducted – whether the trial judge erred in permitting cross-examination of the appellant in relation to his previous conviction – whether there was a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the trial judge repeated a factual statement by the prosecutor that a co-offender, Ms Kaukau, who did not give evidence at trial, had pleaded guilty to the offence – where, in cross-examination, another co-offender, Ms McLean, agreed that when she was sentenced Ms Kaukau was sitting next to her in the dock – where there the appellant contends that there was no direct or indirect evidence about any plea by Ms Kaukau – where the appellant submits that the trial judge erred in failing to give a warning in relation to the apparent plea by Ms Kaukau – where the respondent submits that the trial judge’s implicit reference to Ms Kaukau’s plea did not advance the undisputed position that Ms Kaukau had been identified by one of the complainants as a co-offender – whether a miscarriage of justice occurred Evidence Act 1977 (Qld), s 15(2) Matusevich v The Queen (1977) 137 CLR 633; [1977] HCA 30, cited Phillips v The Queen (1985) 159 CLR 45; [1985] HCA 79, cited R v Brown [1960] VR 382; [1960] VicRp 62, cited R v SCA [2002] 2 Qd R 70; [2001] QCA 199, considered
COUNSEL:	D Shepherd for the appellant P J…