R v Toomath - [2009] QCA 369

SUPREME COURT OF QUEENSLAND

CITATION:

R v Toomath [2009] QCA 369

PARTIES:

R
v
TOOMATH, Jonathan Jason
(appellant)

FILE NO/S:

CA No 198 of 2009
DC No 272 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

4 December 2009

DELIVERED AT:

Brisbane

HEARING DATE:

30 November 2009

JUDGE:

Keane and Muir JJA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal against conviction dismissed.

2. Application for leave to appeal against sentence dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – where appellant convicted after a trial in the District Court of unlawful stalking, entering a dwelling with intent to commit an indictable offence and unlawful and indecent assault – where appellant submitted that as assault is an element of the offence of unlawful and indecent assault the defence of provocation was available to the appellant if raised on the evidence – where appellant submitted provocation was so raised – whether primary judge erred in failing to leave the defence of provocation for the jury's consideration

Criminal Code 1899 (Qld), s 245, s 268(1), s 269(1), s 352, s 668E(1)

Howe v The Queen (1980) 55 ALJR 5, cited
Masciantonio v The Queen (1995) 183 CLR 58; [1995] HCA 67, considered
R v Buttigieg (1993) 69 A Crim R 21, [1993] QCA 214, cited
Van Den Hoek v The Queen (1986) 161 CLR 158; [1986] HCA 76, considered

COUNSEL:

J B Godbolt for the appellant
M B Lehane for the respondent

SOLICITORS:

MDR Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

KEANE JA: I have had the advantage of reading a draft of the reasons for judgment prepared by Muir JA. I agree with those reasons and the orders proposed by his Honour.

MUIR JA: The complainant was convicted after a trial in the District Court of unlawful stalking (count 1), entering a dwelling with intent to commit an indictable offence in the dwelling (count 3) and unlawful and indecent assault (count 5). He was acquitted of wilful damage of a window (count 2) and unlawful assault with intent to rape (count 4).

He appeals against his conviction. Counsel for the appellant made no submissions on the only ground of appeal in the notice of appeal but was given leave to include a new ground that the learned primary judge erred in failing to leave the defence of provocation for the jury's consideration.

The complainant's evidence

The evidence of the complainant was to the following effect. She had known the appellant for four months or so prior to 4 July 2008, the date on which counts 3 and 5 were committed. She had had a friendly relationship with the appellant which was not romantic or sexual 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 Toomath

Details

AGLC: R v Toomath [2009] QCA 369
Case: [2009] QCA 369
Decision Date: 4 December 2009

CaseChat Overview and Summary

The appellant was convicted in the District Court of stalking, entering a dwelling with intent to commit an indictable offence and unlawful and indecent assault. The appellant appealed against the conviction, arguing that the primary judge erred by not leaving the defence of provocation to the jury's consideration. The respondent contended that the defence of provocation was not available as it was not raised in the court below. The Court of Appeal was required to determine whether the primary judge erred in not leaving the defence of provocation to the jury's consideration.

The Court of Appeal held that the appellant had not raised the defence of provocation in the court below, and therefore, the primary judge was not obliged to leave the defence to the jury's consideration. The Court of Appeal held that the primary judge did not err in failing to leave the defence of provocation to the jury's consideration. The appellant had not raised the defence of provocation in the court below, and therefore, the primary judge was not obliged to leave the defence to the jury's consideration. The Court of Appeal held that the primary judge's direction to the jury was correct, and the appellant's appeal against conviction was dismissed. The Court of Appeal also dismissed the appellant's application for leave to appeal against sentence.

The Court of Appeal dismissed the appellant's appeal against conviction and the application for leave to appeal against sentence. The Court of Appeal held that the primary judge did not err in failing to leave the defence of provocation to the jury's consideration. The appellant had not raised the defence of provocation in the court below, and therefore, the primary judge was not obliged to leave the defence to the jury's consideration. The Court of Appeal held that the primary judge's direction to the jury was correct.

Orders

Orders of the court

1. Appeal against conviction dismissed.

2. Application for leave to appeal against sentence dismissed.

Background

Background to the litigation

Full text does not contain this section.

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 Toomath [2009] QCA 369
PARTIES:	R v TOOMATH, Jonathan Jason (appellant)
FILE NO/S:	CA No 198 of 2009 DC No 272 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	4 December 2009
DELIVERED AT:	Brisbane
HEARING DATE:	30 November 2009
JUDGE:	Keane and Muir JJA and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal against conviction dismissed. 2. Application for leave to appeal against sentence dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – where appellant convicted after a trial in the District Court of unlawful stalking, entering a dwelling with intent to commit an indictable offence and unlawful and indecent assault – where appellant submitted that as assault is an element of the offence of unlawful and indecent assault the defence of provocation was available to the appellant if raised on the evidence – where appellant submitted provocation was so raised – whether primary judge erred in failing to leave the defence of provocation for the jury's consideration Criminal Code 1899 (Qld), s 245, s 268(1), s 269(1), s 352, s 668E(1) Howe v The Queen (1980) 55 ALJR 5, cited Masciantonio v The Queen (1995) 183 CLR 58; [1995] HCA 67, considered R v Buttigieg (1993) 69 A Crim R 21, [1993] QCA 214, cited Van Den Hoek v The Queen (1986) 161 CLR 158; [1986] HCA 76, considered
COUNSEL:	J B Godbolt for the appellant M B Lehane for the respondent
SOLICITORS:	MDR Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent