R v Johnston - [2012] QDC 72

[2012] QDC 72

DISTRICT COURT

CRIMINAL JURISDICTION

JUDGE R JONES

Indictment No 1993 of 2011
Indictment No 288 of 2012

THE QUEEN

JACOB PREBBLE JOHNSTON

BRISBANE

..DATE 30/04/2012

ORDER

HIS HONOUR: This is an application pursuant to section 590AA of the Queensland Criminal Code. The applicant is a
co-accused in respect of a number of offences which arose out of what have become to be known as "home invasions". Three co-accused's have been charged with a number of offences. The three co‑accused are Kylie McLean, Laken Kaukau, and the applicant, Jacob Johnston. McLean and Kaukau have pled guilty to a number of offences arising out of the incident.

At the trial of the applicant the Crown intends to adduce evidence of the following facts: first, that Laken Kaukau was involved in the offences charged; second, that Kylie McLean was involved in the offences charged; third, evidence that the applicant and Laken Kaukau were in a relationship at the time of the offence, and, fourth, evidence that the applicant and Kaukau were located together at the time of the search warrant at McLean's residence on 28 February 2011. That occurred some six weeks after the offences were committed. The applicant seeks to have the evidence concerning the last two of those matters excluded.

The evidence against McLean was that he was identified during a photoboard procedure by one of the occupants of the house. His DNA was also located on footwear located in the house.
The evidence against Kaukau was a positive photoboard identification. The Crown intends to lead that evidence during the trial against the applicant but not that they have pled guilty to the associated charges.

The Crown asserts in its written outline of submissions:

"In addition, the respondent intends to lead evidence of the relationship and association between the applicant and Kaukau not as evidence which could be considered as guilt by association but as evidence to support the photoboard identification evidence.

The respondent submits that the circumstantial fact that the applicant and Kaukau were in a relationship at the time of the offence is relevant and admissible.

The fact that the applicant was in a relationship with Kaukau is a circumstantial fact and is a matter for the jury as to what weight they place on it when assessing the strength of the circumstantial case.

The respondent also submits that the circumstantial fact that the applicant and Kaukau were located together at the time of the search warrant at McLean's residence, as admitted by those present during the search warrant is admissible and relevant. Again, it is a circumstantial fact and it is a matter for the jury as to what weight they place on it when assessing the case."

Mr Glenday, for the respondent, accepts that the relationship evidence is no higher than the applicant and Kaukau were in a relationship as "boyfriend and girlfriend". This relationship was referred to by the applicant in his interview with the police on 28 February 2011. The Crown…

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 [2012] QDC 72
Case: [2012] QDC 72
Decision Date: 30 April 2012

CaseChat Overview and Summary

In the District Court of Queensland, the Queen brought criminal charges against Jacob Prebble Johnston, one of three co-accused in a series of home invasions. The other co-accused, Kylie McLean and Laken Kaukau, had already pleaded guilty to various offences arising from the incidents. Johnston sought to exclude certain evidence related to his relationship with Kaukau and their joint presence at McLean's residence during a police search, arguing it was prejudicial and lacked probative value. The Crown argued that the relationship evidence was relevant to support the identification evidence against Johnston.

The central legal issue before the court was whether the proposed evidence of Johnston's relationship with Kaukau and their joint presence at McLean's residence, despite being circumstantial, was admissible and relevant to the case against Johnston. The court had to weigh the probative value of this evidence against any prejudicial impact it might have on Johnston's right to a fair trial.

The court found that the relationship evidence and the evidence of Johnston, Kaukau, and McLean being together during the police search were relevant and admissible circumstantial evidence. It held that the association between the co-accused, while not as strong as in previous cases, still supported the identification evidence against Johnston. The court emphasised that the evidence did not suggest that Johnston's guilt could be inferred merely because of his association with the other co-accused. It concluded that appropriate directions could be given to the jury to mitigate any prejudicial effect. Consequently, the application to exclude the evidence was refused.

Orders