R v Jones

Case [2011] QCA 19


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…

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Details
AGLC
R v Jones [2011] QCA 19
Case
[2011] QCA 19
Decision Date

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

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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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