R v Skelton

[1992] QCA 285

IN THE COURT OF APPEAL	[1992] QCA 285
SUPREME COURT OF QUEENSLAND	C.A. No. 93 of 1992

T H E Q U E E N

v.

SHAUN SKELTON

REASONS FOR JUDGMENT OF THE COURT

Delivered the 10th day of August 1992

The appellant appeals against his conviction on 20 February 1992

of stealing with actual violence whilst being armed with a dangerous weapon, namely a knife. Although his notice of appeal

contains 17 grounds, only three, grounds 13-15, are pursued.

They were:

that his Honour should have found that the probative value of

the evidence of the accused's propensity to carry a knife was

outweighed by its prejudicial effect upon the accused;

that his Honour should have found that it was unfair to the

accused for evidence to be led of his propensity to carry a

knife; and

that his Honour should have excluded from the jury the evidence

of the accused's propensity to carry a knife.

The robbery of which the appellant was convicted was carried out

by a man carrying a knife with a blade about 30cm long and 2-3cm

wide at its widest part. The accused's sister gave evidence that the accused had a fetish with knives from when he was about 14 years of age. She said that when he was living in Darwin

prior to his arrest he had two knives which he carried out with

him. They were folding knives and the larger one had a blade of

20-30cm. Neither of these knives was the one alleged to have

been used in the robbery. Another young woman also gave

evidence of the appellant's habit of carrying knives.

The evidence against the appellant in the case included

confessional evidence, some informal admissions made by the appellant to relatives and to police, and a formal video recorded confession. The truth of these confessions was disputed. Notwithstanding the strength of the confessions, it

is not argued by the Crown before us that, if the evidence of

Ms. Skelton was improperly admitted, the conviction should

nevertheless stand.

The appellant's formal confession included in it an assertion by

him that his decision to commit the robbery was a spur of the

moment decision. His Honour allowed the above evidence of Ms. Skelton and the other young woman to be given because he thought

that the appellant's habit of carrying a knife was relevant to

his alleged statement in his confession that it was a spur of

the moment decision to commit the robbery.

It may well be correct that the fact that a person habitually

carries a knife at least explains how such a person can make a spur of the moment decision to commit a robbery with a knife. In that sense the fact that the appellant habitually carried a

knife was of relevance to the veracity of that part of his

confession. However, it may be doubted whether that would have any significant effect on the veracity of the confession as a whole.

On the other hand, the admission of this evidence, not merely

that the appellant habitually carried a knife but also that he

had a fetish with knives was highly prejudicial to him in that a jury might impermissibly use those circumstances as a link

identifying such a person as the person with a knife who

committed the offence. That prejudicial effect, in our view, far outweighed its relevance. Consequently, his Honour should

have excluded it and his failure to do so caused the trial to

miscarry.

We would therefore allow the appeal, quash the conviction and

order a new trial.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	C.A. No. 93 of 1992
Before the Court of Appeal
The President Mr Justice Davies Mr Justice Thomas

T H E Q U E E N

v.

SHAUN SKELTON

REASONS FOR JUDGMENT OF THE COURT

Delivered the 10th day of August 1992

MINUTES OF ORDER:The appeal is allowed; the conviction quashed,

and a new trial ordered

CATCHWORDS:

Counsel:T. Carmody for the Appellant

D. Bullock for the Crown

Solicitors:Legal Aid Office for the Appellant

Director of Prosecutions for the Crown

Date(s) of Hearing:10 August 1992

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND C.A. No. 93 of 1992

T H E Q U E E N

v.

SHAUN SKELTON

____________________________________________________

THE PRESIDENT
DAVIES JA

THOMAS J

____________________________________________________

Reasons for Judgment of the Court delivered the 10th day of

August 1992

____________________________________________________

"THE APPEAL IS ALLOWED, THE CONVICTION QUASHED AND A NEW

TRIAL ORDERED."