R v Thomson - [2016] QCA 259

SUPREME COURT OF QUEENSLAND

CITATION:

R v Thomson [2016] QCA 259

PARTIES:

R
v
THOMSON, Kevin David
(appellant)

FILE NO/S:

CA No 208 of 2016
DC No 5089 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Mackay – Date of Conviction: 28 July 2016

DELIVERED ON:

Orders delivered ex tempore 14 October 2016
Reasons delivered 18 October 2016

DELIVERED AT:

Brisbane

HEARING DATE:

4 October 2016

JUDGES:

Gotterson JA and Douglas and Boddice JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Orders delivered ex tempore on 14 October 2016:

1.   The appeal be allowed.

2.   The conviction be set aside.

3.   A verdict of acquittal be entered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO ALL THE EVIDENCE – where the appellant was convicted of committing grievous bodily harm upon the complainant – where the complainant was assaulted in the toilets of a bar – where one witness found the complainant in the toilets, after he had been assaulted – where that witness said he saw a male leaving the toilets as the witness entered the toilets – where the witness said the male was wearing a blue dress shirt – where that same witness later identified to police a man standing across the road as the same man who was leaving the toilets – where that man was the appellant and was wearing a black T-shirt – where it could not be reasonably inferred from the evidence the appellant had been previously wearing a blue dress shirt, but had subsequently disposed of it – where the sole issue is whether the evidence identifying the appellant as the offender was sufficient to satisfy the jury beyond reasonable doubt of the appellant’s guilt – whether the verdict is unreasonable or insupportable having regard to all the evidence

R v RAU[2015] QCA 217, cited
The Queen v Baden-Clay (2016) 90 ALJR 1013; [2016] HCA 35, cited

COUNSEL:

M J Copley QC for the appellant
M T Whitbread for the respondent

SOLICITORS:

Taylors Solicitors for the appellant
Director of Public Prosecutions (Queensland) for the respondent

GOTTERSON JA: I agree with the orders proposed by Boddice J and with the reasons given by his Honour.
DOUGLAS J: I agree with the reasons of Boddice J and the orders proposed by his Honour.
BODDICE J: On 28 July 2016, a jury found the appellant guilty of grievous bodily harm. The primary judge sentenced the appellant to 30 months imprisonment, suspended after 12 months, for an operational period of three years.
The appellant appeals his conviction. The sole ground of appeal is that the verdict is unreasonable or cannot be supported having regard to the whole of the evidence. At issue is whether the evidence identifying the appellant as the offender was sufficient to satisfy the jury beyond reasonable doubt that he was the assailant who…

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 Thomson

Details

AGLC: R v Thomson [2016] QCA 259
Case: [2016] QCA 259
Decision Date: 14 October 2016

CaseChat Overview and Summary

In the case of R v Thomson, the appellant, Thomson, was convicted of committing grievous bodily harm upon the complainant. The incident occurred in the toilets of a bar in Mackay on the night of 24 July 2014. The complainant was assaulted in the bar's men's toilet, but he could not describe his assailant or recall details of the assault. Thomson was subsequently identified by a witness, Conway, as the assailant. Conway initially saw a male wearing a blue dress shirt leaving the toilets as he entered, but later identified Thomson, who was wearing a black T-shirt, as the assailant. The appeal centred on whether the evidence identifying Thomson as the offender was sufficient to satisfy the jury beyond reasonable doubt of his guilt.

The primary legal issue before the court was whether the evidence was sufficient to support the jury's verdict that Thomson was the assailant. The court had to consider whether it could be reasonably inferred that Thomson had been previously wearing a blue dress shirt but had subsequently disposed of it. The court had to assess whether the evidence was sufficient to satisfy the jury beyond reasonable doubt that Thomson was the assailant. The court also had to consider the role of the jury in determining issues of fact and the standard of proof required to uphold a conviction.

The court found that there was insufficient evidence to support the jury's verdict that Thomson was the assailant. The court concluded that the evidence of flight, whilst indicative of a consciousness of guilt, was insufficient to establish beyond reasonable doubt that Thomson was the complainant's assailant if there was a reasonable doubt as to the reliability of Conway's identification of the male across the street as the complainant's assailant. The court found that the evidence will always give rise to such a doubt, and there is no basis to conclude that Thomson ought to be the subject of a re-trial. The verdict must be set aside, and a verdict of acquittal ought to be entered.

Accordingly, the court ordered that the appeal be allowed, the conviction be set aside, and a verdict of acquittal be entered. The orders were delivered ex tempore on 14 October 2016.

Orders

Orders of the court

Orders delivered ex tempore on 14 October 2016:

1. The appeal be allowed.

2. The conviction be set aside.

3. A verdict of acquittal be entered.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In undertaking this task, the Court must also have regard to the role of the jury:[2]“It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is ‘the constitutional tribunal for deciding issues of fact’. Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is ‘unreasonable’ within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury’s function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages. …With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court ‘must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’.” (footnotes omitted)[2]The Queen v Baden-Clay (2016) 90 ALJR 1013; [2016] HCA 35 at [65]-[66].Evidence On the evening of 24 July 2014, the complainant and a friend attended a bar in Mackay. The complainant consumed alcohol prior to attending that bar and whilst at the bar. Sometime after midnight the complainant sat on a long bench seat. A male he did not know approached him and said it was that man’s seat. The complainant told the man to “fuck off”. The male did not reply and left the area. The complainant’s description of the man was “sort of tall and solid built”. The complainant was not able to describe the man’s clothing. Following this incident, the complainant consumed two further alcoholic drinks and then danced. Approximately 20 minutes later, he went into the bar’s men’s toilet. It contained one cubicle and two urinals. The complainant used one of those urinals. Whilst doing so another male entered the toilet area. The complainant next recalled being struck to the left side of his face. He received further blows before dropping to the floor and crawling to the cubicle. The assault continued whilst he was in the cubicle. The complainant was not able to describe his assailant. He did not see the assailant when he came into the toilet area or after being struck by him. The complainant also did not recall details of the assault. At one point, he recalled someone else entering the toilet area. His assailant left the toilet area at this time. The complainant’s next recollection was sitting outside the bar talking to the police.

Decision

Reasons for decision

It was accepted at trial[22] and on appeal[23] that the evidence of flight, whilst indicative of a consciousness of guilt, was insufficient to establish beyond reasonable doubt the appellant was the complainant’s assailant if there was a reasonable doubt as to the reliability of Conway’s identification of the male across the street as the complainant’s assailant.[22]AB191/20.[23]T1-20/34 – 47.Conclusions Once a conclusion is reached that the evidence was insufficient to satisfy a jury beyond reasonable doubt that the appellant was the assailant, the jury’s verdict must be set aside. As the evidence will always give rise to such a doubt, there is no basis to conclude the appellant ought to be the subject of a re-trial. A verdict of acquittal ought to be entered.Orders I would order:1.The appeal be allowed.2.The conviction be set aside.3.A verdict of acquittal be entered.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Thomson [2016] QCA 259
PARTIES:	R v THOMSON, Kevin David (appellant)
FILE NO/S:	CA No 208 of 2016 DC No 5089 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Mackay – Date of Conviction: 28 July 2016
DELIVERED ON:	Orders delivered ex tempore 14 October 2016 Reasons delivered 18 October 2016
DELIVERED AT:	Brisbane
HEARING DATE:	4 October 2016
JUDGES:	Gotterson JA and Douglas and Boddice JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Orders delivered ex tempore on 14 October 2016: 1. The appeal be allowed. 2. The conviction be set aside. 3. A verdict of acquittal be entered.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO ALL THE EVIDENCE – where the appellant was convicted of committing grievous bodily harm upon the complainant – where the complainant was assaulted in the toilets of a bar – where one witness found the complainant in the toilets, after he had been assaulted – where that witness said he saw a male leaving the toilets as the witness entered the toilets – where the witness said the male was wearing a blue dress shirt – where that same witness later identified to police a man standing across the road as the same man who was leaving the toilets – where that man was the appellant and was wearing a black T-shirt – where it could not be reasonably inferred from the evidence the appellant had been previously wearing a blue dress shirt, but had subsequently disposed of it – where the sole issue is whether the evidence identifying the appellant as the offender was sufficient to satisfy the jury beyond reasonable doubt of the appellant’s guilt – whether the verdict is unreasonable or insupportable having regard to all the evidence R v RAU[2015] QCA 217, cited The Queen v Baden-Clay (2016) 90 ALJR 1013; [2016] HCA 35, cited
COUNSEL:	M J Copley QC for the appellant M T Whitbread for the respondent
SOLICITORS:	Taylors Solicitors for the appellant Director of Public Prosecutions (Queensland) for the respondent