R v Johnston - [2013] QCA 171

SUPREME COURT OF QUEENSLAND

CITATION:

R v Johnston [2013] QCA 171

PARTIES:

R
v
JOHNSTON, Stewart Walton
(appellant)

FILE NO/S:

CA No 310 of 2012
DC No 15 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Mackay

DELIVERED ON:

Orders delivered ex tempore 1 May 2013
Reasons delivered 9 July 2013

DELIVERED AT:

Brisbane

HEARING DATE:

1 May 2013

JUDGES:

Margaret McMurdo P, North and Henry JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Delivered ex tempore on 1 May 2013:
1.The appeal is allowed.

2.The conviction is dismissed.

3.A verdict of acquittal is entered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – where appellant acquitted of rape involving digital penetration but convicted of indecent dealing with a child under 16 in the alternative – where appellant acquitted of rape involving penile penetration and unlawful carnal knowledge in the alternative – where appellant contended the verdicts were inconsistent – where appellant appealed against his conviction on the basis that the verdicts were unsafe, unsatisfactory and unreasonable having regard to the evidence – whether a jury acting reasonably could have returned such verdicts

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the offending consisted of a single act charged as two counts – where the appellant’s trial counsel did not seek a Markuleski direction and one was not given – where the appellant contends that the failure to give a Markuleski direction occasioned a miscarriage of justice – where evidence concerning a text message sent by the complainant was led to attack her credibility – where the appellant’s trial counsel did not seek and the primary judge did not give a direction as to the use that could be made of the text message – where the appellant contended that a failure to so direct the jury led to a miscarriage of justice – whether primary judge erred on either or both grounds – whether miscarriage of justice occurred

MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, applied
R v LR [2006] 1 Qd R 435; [2005] QCA 368, cited
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, applied

COUNSEL:

J Allen for the appellant
M Cowen for the respondent

SOLICITORS:

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

MARGARET McMURDO P: I agree with Henry J’s reasons for the orders made on 1 May 2013 allowing the appeal, quashing the conviction and directing a verdict of acquittal.

I add only some brief additional observations as to Ground 5 although its determination is not critical to the outcome of the appeal in light of the Court’s conclusion as to the inconsistency of the verdicts. This ground concerns the complainant’s evidence,…

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 171
Case: [2013] QCA 171
Decision Date: 1 May 2013

CaseChat Overview and Summary

In the matter of R v Johnston, the appellant stood convicted in the County Court of Victoria of indecent dealing with a child under 16, in circumstances where he was acquitted of rape involving digital penetration and penile penetration as well as unlawful carnal knowledge in the alternative. The appellant appealed his conviction on the basis that the verdicts were unsafe, unsatisfactory, and unreasonable in light of the evidence presented. The primary court had to determine whether a jury acting reasonably could have reached the verdicts given the evidence.

The court considered whether the verdicts were inconsistent and whether the failure to give a Markuleski direction or a direction concerning the use of a particular piece of evidence amounted to a miscarriage of justice. The appellant argued that the trial counsel's failure to request a Markuleski direction, which pertains to offences that are alternatives or alternatives to alternatives, and a direction regarding the use of a text message led to a miscarriage of justice. The court examined whether these omissions constituted a miscarriage of justice and whether the primary judge erred in not addressing these issues.

The Court of Appeal allowed the appeal, dismissed the conviction, and entered a verdict of acquittal. The court found that the jury could not have reasonably convicted the appellant of indecent dealing while acquitting him of the other offences, given the evidence. Additionally, the court concluded that the primary judge's failure to provide the requested directions did not amount to a miscarriage of justice. Consequently, the conviction was quashed, and the appellant was acquitted.

Orders

Orders of the court

Delivered ex tempore on 1 May 2013:

1.The appeal is allowed.

2.The conviction is dismissed.

3.A verdict of acquittal is entered.

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Johnston [2013] QCA 171
PARTIES:	R v JOHNSTON, Stewart Walton (appellant)
FILE NO/S:	CA No 310 of 2012 DC No 15 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Mackay
DELIVERED ON:	Orders delivered ex tempore 1 May 2013 Reasons delivered 9 July 2013
DELIVERED AT:	Brisbane
HEARING DATE:	1 May 2013
JUDGES:	Margaret McMurdo P, North and Henry JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Delivered ex tempore on 1 May 2013: 1.The appeal is allowed. 2.The conviction is dismissed. 3.A verdict of acquittal is entered.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – where appellant acquitted of rape involving digital penetration but convicted of indecent dealing with a child under 16 in the alternative – where appellant acquitted of rape involving penile penetration and unlawful carnal knowledge in the alternative – where appellant contended the verdicts were inconsistent – where appellant appealed against his conviction on the basis that the verdicts were unsafe, unsatisfactory and unreasonable having regard to the evidence – whether a jury acting reasonably could have returned such verdicts CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the offending consisted of a single act charged as two counts – where the appellant’s trial counsel did not seek a Markuleski direction and one was not given – where the appellant contends that the failure to give a Markuleski direction occasioned a miscarriage of justice – where evidence concerning a text message sent by the complainant was led to attack her credibility – where the appellant’s trial counsel did not seek and the primary judge did not give a direction as to the use that could be made of the text message – where the appellant contended that a failure to so direct the jury led to a miscarriage of justice – whether primary judge erred on either or both grounds – whether miscarriage of justice occurred MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, applied R v LR [2006] 1 Qd R 435; [2005] QCA 368, cited R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, applied
COUNSEL:	J Allen for the appellant M Cowen for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent