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R v Jones

R v Jones

Case [2011] QCA 19 18 February 2011

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Jones [2011] QCA 19

PARTIES:

R
v
JONES, Gordon Francis
(appellant)

FILE NO/S:

CA No 168 of 2010
DC No 645 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Mt Isa

DELIVERED ON:

18 February 2011

DELIVERED AT:

Brisbane

HEARING DATE:

3 February 2011

JUDGES:

Chief Justice, Fraser and White JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. The appeal is allowed
2. The conviction below is set aside
3. A re-trial is ordered

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where the appellant was an ambulance officer – where the appellant was found guilty of indecent assault while performing an electrocardiogram on the complainant – whether the trial judge erred in directing the jury that the appellant’s intention was irrelevant in determining whether the assault was indecent

Criminal Code 1899 (Qld), s 23, s 245, s 246, s 352, s 352(1)(a)
Criminal Code Act Compilation Act 1913 (WA), s 23

Drago v R (1992) 8 WAR 488; (1992) 63 A Crim R 59, cited
Harkin v R (1989) 38 A Crim R 296, considered
R v BAS [2005] QCA 97, cited
R v Court [1988] 2 WLR 1071; (1988) 87 Cr App R 144, cited
R v McBride[2008] QCA 412, cited

COUNSEL:

K Prskalo for the appellant
D R Kinsella for the respondent

SOLICITORS:

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

[1] CHIEF JUSTICE: I have had the advantage of reading the reasons for judgment of White JA. I agree with the orders proposed by her Honour, and with her reasons.

[2] FRASER JA: I have had the advantage of reading the reasons for judgment of White JA. I agree with those reasons and with the orders proposed by her Honour.

[3] WHITE JA: On 9 June 2010 the appellant was found guilty after a trial of one count of indecent assault on 21 October 2008. He was acquitted on the other count on the indictment of being in a dwelling with intent to commit an indictable offence, the indictable offence being the sexual assault. Through his counsel, Ms Prskalo, the appellant was given leave to substitute, in lieu of the grounds in his Notice of Appeal, the following as his sole ground of appeal without objection from the respondent:

“There was a miscarriage of justice because the learned trial judge erred in directing the jury that the appellant’s intention was irrelevant in determining whether the assault was indecent.”

This appeal raises a narrow point but one of some importance involving the interplay between “indecent” and s 23 of the Criminal Code.

[4] The appellant was a 45 year old paramedic employed by the Queensland Ambulance Service (QAS) in…

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 Jones

Details

AGLC: R v Jones [2011] QCA 19
Case: [2011] QCA 19
Decision Date: 18/02/2011

CaseChat Overview and Summary

The appellant in this case, an ambulance officer, was convicted of indecent assault while performing an electrocardiogram on the complainant. The matter has come before the court on appeal, where the appellant contends that there was a miscarriage of justice due to the trial judge’s direction to the jury that the appellant’s intention was irrelevant in determining whether the assault was indecent. The court was required to consider whether the trial judge's direction to the jury was erroneous and, if so, whether it amounted to a miscarriage of justice warranting the setting aside of the conviction and ordering a re-trial.

The primary legal issue the court had to address was whether the trial judge misdirected the jury by stating that the appellant's intention was irrelevant in determining whether the assault was indecent. The appellant argued that the trial judge’s direction was erroneous because, under Australian criminal law, the mens rea, or the mental state of the accused, is a fundamental component of many offences, including indecent assault. The court needed to examine the principles of criminal law and the elements required to establish the offence of indecent assault to determine if the trial judge’s direction was correct.

The court found that the trial judge indeed erred in directing the jury that the appellant’s intention was irrelevant. The court held that for an offence of indecent assault, the prosecution must prove that the accused acted with the requisite mens rea. Since the trial judge’s direction omitted this critical element, it was considered a significant misdirection. The court concluded that this misdirection constituted a miscarriage of justice as it deprived the appellant of a fair trial. Consequently, the appeal was allowed, the conviction was set aside, and a re-trial was ordered to rectify the error.

Orders

Orders of the court

1. The appeal is allowed

2. The conviction below is set aside

3. A re-trial is ordered

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.

Citations

AGLC Citation

R v Jones [2011] QCA 19

Most Recent Citation

R v McCallum [2013] QCA 254

Cases citing this decision · 12 of 12 shown

The State of Western Australia v H
[2023] WADC 149 Para 10

…t. In this regard, cases relating to indecent dealings, particularly Drago v The Queen (1992) 8 WAR 488; R v Harkin (1989) 38 A Crim R 296; R v Jones [2011] QCA 19; (2011) 209 A Crim R 379; and Johnson v Ramsden [2019] WASC 84, are analogous.…
R v KBE
[2023] QCA 161

…8 CLR 123; [2020] HCA 12, cited R v Harkin (1989) 38 A Crim R 296, cited R v Jones (2011) 209 A Crim R 379; [2011] QCA 19, considered Western Australia v Jackson (2019) 55 WAR 285; [2019] WASCA 118, cited COUNSEL: T A Ryan KC for the appellant E L Kelso for the respondent SOLICITORS: Fisher Dore Lawyers for the…
R v SW
[2022] NSWDC 2

…R (1989) 38 ACrimR 296 Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77 Mahmood v Western Australia (2008) 232 CLR 397 R v Jones [2011] QCA 19 R v VHP (unreported Court of Criminal Appeal NSW, 7 July 1997) Reg v Dossi (1918) 13 CrApR 158 S v The Queen (1989) 168 CLR 266; [1989] HCA 66 The Queen v Phillips (1971…
Health Ombudsman v Duggirala
[2021] QCAT 326 Para 10

…f sexual assault, which in the circumstances of this factual scenario, carries with it an admission of an illicit sexual intent.[10] [10] R v Jones [2011] QCA 19.…
R v WBN
[2020] QCA 203 Para 9

…on that in order to convict, the jury had to be persuaded beyond a reasonable doubt that there was an intentional and non-accidental touching. [244][2011] QCA 19.…
R v McGrady
[2020] QCA 192 Para 12

…omplainant was motivated by sexual interest rather than another innocent interest. The trial judge ruled that such a direction was not required. [1][2011] QCA 19.…
R v Hayward
[2019] QCA 91 Para 31

…ination with consent and within the ambit of accepted medical practice. However, no form of additional direction was suggested by the prosecutor. [48][2011] QCA 19; (2011) 209 A Crim R 397.…
R v Harkin
[2019] WASC 84 Para 3

…ption, such as the paramedic's clinical interest in electrocardiograms, and that the electrodes seemed to have been properly placed. [16] R v Jones [2011] QCA 19; (2011) 209 A Crim R 379.…
R v Wollaston
[2018] QCA 43 Para 6

…beyond reasonable doubt that there was an intentional and non-accidental touching on the breast of the complainant by the defendant.” [2][2011] QCA 19.…
White v Johnston
[2015] NSWCA 18 Para 63

…A more recent criminal decision is R v Jones [2011] QCA 19; 209 A Crim R 379. The accused was an ambulance paramedic, who had been called to a woman’s home after midnight because she was suffering chest pains. He carried out an electrocardiogram (ECG), and decided she should go to hospital. She was discharged la…
R v Khaled
[2014] QCA 349 Para 1

…accede to that course and did not ask the judge, either before or at the conclusion of the summing-up, to direct the jury in terms of s 23(1)(b). [14][2011] QCA 19. [15]T 1-33 lines 43-46, AB 88. [16][2011] QCA 19, [32]. [17]AB 89, T1-34, lines 25-28.…
R v McCallum
[2013] QCA 254 Para 1

…recting the jury, and on two redirections sought by them, the trial judge instructed that the accused’s motive was irrelevant to indecency. [32][2011] QCA 19.…

View all 12 citing cases →

Cases cited in this decision · 4 of 4 shown

R v McBride
[2008] QCA 412 Para 1

…[13][2008] QCA 412. The following day, just after noon, the jury sought redirection on “serious wrongdoing” with respect to the indecent assault charge. In his discussion with counsel the primary judge said that he had in mind the observations in R v McBride [13] where it was said that conduct had to be more than…
R v BAS
[2005] QCA 97 Para 1

…statement by Lee CJ in Harkin :[15] [15](1989) 38 A Crim R 296, decision of the Court of Appeal of New South Wales adopted in Queensland in R v BAS [2005] QCA 97 per Fryberg J at [16]-[17] with whom Davies and McPherson JJA agreed.…
Drago v The Queen
[1994] HCATrans 292 Para 1

…offence under s 352 which, by s 23, has no role, and motive as a factor in characterising the assault as indecent or not.[20] Murray J observed: [19](1992) 8 WAR 488; (1992) 63 A Crim R 59. [20]Per Nicholson J at 70 and Murray J at 73.…
[1988] 2 WLR 1071
[1988] 2 WLR 1071

…(1992) 8 WAR 488; (1992) 63 A Crim R 59, cited Harkin v R (1989) 38 A Crim R 296, considered R v BAS [2005] QCA 97, cited R v Court [1988] 2 WLR 1071; (1988) 87 Cr App R 144, cited R v McBride [2008] QCA 412, cited COUNSEL: K Prskalo for the appellant D R Kinsella for the respondent SOLICITORS: Legal Aid Queensland…

Legislation cited in this decision · 1

Criminal Code Act Compilation Act 1913 (WA)
23 1 mention

CITATION:	R v Jones [2011] QCA 19
PARTIES:	R v JONES, Gordon Francis (appellant)
FILE NO/S:	CA No 168 of 2010 DC No 645 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Mt Isa
DELIVERED ON:	18 February 2011
DELIVERED AT:	Brisbane
HEARING DATE:	3 February 2011
JUDGES:	Chief Justice, Fraser and White JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. The appeal is allowed 2. The conviction below is set aside 3. A re-trial is ordered
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where the appellant was an ambulance officer – where the appellant was found guilty of indecent assault while performing an electrocardiogram on the complainant – whether the trial judge erred in directing the jury that the appellant’s intention was irrelevant in determining whether the assault was indecent Criminal Code 1899 (Qld), s 23, s 245, s 246, s 352, s 352(1)(a) Criminal Code Act Compilation Act 1913 (WA), s 23 Drago v R (1992) 8 WAR 488; (1992) 63 A Crim R 59, cited Harkin v R (1989) 38 A Crim R 296, considered R v BAS [2005] QCA 97, cited R v Court [1988] 2 WLR 1071; (1988) 87 Cr App R 144, cited R v McBride[2008] QCA 412, cited
COUNSEL:	K Prskalo for the appellant D R Kinsella for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Qld) for the respondent