R v Lawton - [2021] QCA 272

SUPREME COURT OF QUEENSLAND

CITATION:

R v Lawton [2021] QCA 272

PARTIES:

R
v
LAWTON, Kenneth James
(appellant/applicant)

FILE NO/S:

CA No 115 of 2019
DC No 1456 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 17 April 2019; Date of Sentence 18 April 2019 (Morzone QC DCJ)

DELIVERED ON:

10 December 2021

DELIVERED AT:

Brisbane

HEARING DATE:

16 August 2021

JUDGES:

Morrison and Mullins JJA and Crow J

ORDERS:

1. Appeal against conviction is dismissed.

2. Leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – CONTROL OF PROCEEDINGS – SEPARATE TRIALS AND ELECTION – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – JOINDER – JOINDER OF COUNTS AND DEFENDANTS – JOINT TRIAL – where the appellant was convicted at trial of five counts of sexual offending against children including indecent treatment and carnal knowledge – where the complainants were two brothers, one aged nine and the other between 11 and 15 at the time of the offences – where the appellant was a friend of the children’s parents – where the counts against both brothers involved the appellant committing penetrative acts on the brothers at separate times – where the counts involving the younger brother involved the appellant inviting the complainant to sit on his lap whilst in a car and sodomising the complainant – where the older brother gave evidence of another “40 plus” occasions where sexual offending was perpetrated upon him by the appellant including an incident which occurred while the appellant was driving and the older brother was invited to sit on the appellant’s lap – where the appellant applied at first instance to have a separate trial for the counts relating to the younger brother on the grounds that the offending was not strikingly similar and that there was a rational view of the evidence consistent with the appellant’s innocence – where the appellant at first instance did accept that the discreditable conduct for both complainant is admissible in the respondent’s case – where the pre-trial hearing judge at first instance refused the application for severance – where the appellant argues upon appeal that the sheer volume of the “40 plus” other uncharged acts of sexual offending “overwhelmed” the jury – whether the counts against the younger brother formed part of a series of offences of the same or similar character as those involving the older brother – whether there were sufficient similarities between the charged and uncharged acts as against both the brothers so as to make them admissible in the proof of the other – whether the “sheer volume” of the uncharged acts alleged by the older brother would have overwhelmed the jury so as to be prejudicial – whether the pre-trial hearing judge erred in refusing the application to sever the indictment – whether a miscarriage of justice occurred due…

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 Lawton

Details

AGLC: R v Lawton [2021] QCA 272
Case: [2021] QCA 272
Decision Date: 10 December 2021

CaseChat Overview and Summary

The appeal in R v Lawton involved the appellant, who was convicted at trial of five counts of sexual offending against two brothers, one aged nine and the other between 11 and 15 at the time of the offences. The appellant, a family friend, was found guilty of committing penetrative acts on the boys at separate times. The appellant contested the refusal of the trial judge to sever the counts relating to the younger brother from the rest of the charges, arguing that the sheer volume of uncharged acts of sexual offending overwhelmed the jury. Additionally, the appellant argued that the judge erred in proceeding with the pre-recording of the complainants' evidence while the appellant was physically excluded from court, unable to see the witnesses. The appellant also appealed against the sentence, claiming it was manifestly excessive.

The primary legal issues in the appeal were whether the counts against the younger brother formed part of a series of offences of the same or similar character as those involving the older brother, and thus admissible in the proof of the other, and whether the sheer volume of uncharged acts alleged by the older brother would have overwhelmed the jury so as to be prejudicial. The court also had to consider whether the pre-trial hearing judge erred in refusing the application to sever the indictment, and whether a miscarriage of justice occurred due to the indictment not being severed. Lastly, the appeal addressed whether the sentence imposed was so disproportionately high as to reflect a misapplication of principle by the sentence judge.

The court dismissed the appeal against the conviction, holding that the counts against both brothers were part of a series of offences of the same or similar character, and the uncharged acts did not overwhelm the jury. The court found no error in the trial judge's refusal to sever the indictment, and no miscarriage of justice occurred. The court also held that the trial judge did not err in proceeding with the pre-recording of the evidence under the circumstances. The appeal against sentence was refused, with the court finding the sentence was not manifestly excessive.

The final orders of the court were to dismiss the appeal against conviction and to refuse leave to appeal against sentence.

Orders

Orders of the court

1. Appeal against conviction is dismissed.

2. Leave to appeal against sentence is refused.

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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CITATION:	R v Lawton [2021] QCA 272
PARTIES:	R v LAWTON, Kenneth James (appellant/applicant)
FILE NO/S:	CA No 115 of 2019 DC No 1456 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 17 April 2019; Date of Sentence 18 April 2019 (Morzone QC DCJ)
DELIVERED ON:	10 December 2021
DELIVERED AT:	Brisbane
HEARING DATE:	16 August 2021
JUDGES:	Morrison and Mullins JJA and Crow J
ORDERS:	1. Appeal against conviction is dismissed. 2. Leave to appeal against sentence is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – CONTROL OF PROCEEDINGS – SEPARATE TRIALS AND ELECTION – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – JOINDER – JOINDER OF COUNTS AND DEFENDANTS – JOINT TRIAL – where the appellant was convicted at trial of five counts of sexual offending against children including indecent treatment and carnal knowledge – where the complainants were two brothers, one aged nine and the other between 11 and 15 at the time of the offences – where the appellant was a friend of the children’s parents – where the counts against both brothers involved the appellant committing penetrative acts on the brothers at separate times – where the counts involving the younger brother involved the appellant inviting the complainant to sit on his lap whilst in a car and sodomising the complainant – where the older brother gave evidence of another “40 plus” occasions where sexual offending was perpetrated upon him by the appellant including an incident which occurred while the appellant was driving and the older brother was invited to sit on the appellant’s lap – where the appellant applied at first instance to have a separate trial for the counts relating to the younger brother on the grounds that the offending was not strikingly similar and that there was a rational view of the evidence consistent with the appellant’s innocence – where the appellant at first instance did accept that the discreditable conduct for both complainant is admissible in the respondent’s case – where the pre-trial hearing judge at first instance refused the application for severance – where the appellant argues upon appeal that the sheer volume of the “40 plus” other uncharged acts of sexual offending “overwhelmed” the jury – whether the counts against the younger brother formed part of a series of offences of the same or similar character as those involving the older brother – whether there were sufficient similarities between the charged and uncharged acts as against both the brothers so as to make them admissible in the proof of the other – whether the “sheer volume” of the uncharged acts alleged by the older brother would have overwhelmed the jury so as to be prejudicial – whether the pre-trial hearing judge erred in refusing the application to sever the indictment – whether a miscarriage of justice occurred due…