R -v- TURNER [2001] WASCA 344 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 344 (S)
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:2/2001	Heard:	9 AUGUST 2001
Coram:	MALCOLM CJ WHEELER J	Delivered:	6/11/01
Supplementary Delivered:	8/04/04
No of pages:	11	Judgment Part:	1 of 1
Result:	No order as to costs
Category:	A
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Parties:	THE QUEEN JOHN TURNER RONALD KINNEY
Catchwords:	Criminal law and procedure Appeal by the Crown under s 688(2) of the Criminal Code (WA) against verdicts of acquittal Costs
Legislation:	Criminal Code (WA), ss 529(b), 611A, 688(2)(b), 690(3) Judiciary Act 1903 (Cth), s 35 Suitors Fund Act 1964 (WA), s 10(1) Supreme Court Act 1935 (WA), s 37(1), s 37(2)
Case References:	Affleck v The King (1906) 3 CLR 608 Amand v Home Secretary & Minister of Defence of Royal Netherlands Government [1943] AC 147 C v Johnson [1967] SASR 279 Carter v Managing Partner, Mallesons Stephen Jaques & Ors (1993) 11 WAR 159 Jamieson v The Queen (1987) 34 A Crim R 308 Latoudis v Casey (1990) 170 CLR 534 Perry v The Queen [1975] WAR 33 R v Goia (1988) 19 FCR 212 R v Gross [1946] OR 1 R v J (1983) 49 ALR 376 R v Martin (1984) 58 ALJR 217 R v Scott [1907] VLR 471 R v Stevenson [1907] VLR 475 R v Udechuku [1982] WAR 21 R v Whitworth (1988) 164 CLR 500 Griffiths v The Queen (1977) 137 CLR 293 R v Hyman & French (1990) 2 WAR 222 R v Pavia (1993) 67 A Crim R 364 R v Punevski (2001) 122 A Crim R 342

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : R -v- TURNER [2001] WASCA 344 (S) CORAM : MALCOLM CJ

WHEELER J

HEARD : 9 AUGUST 2001 DELIVERED : 6 NOVEMBER 2001 SUPPLEMENTARY
DECISION : 8 APRIL 2004 FILE NO/S : CCA 2 of 2001 BETWEEN : THE QUEEN

Appellant

AND

JOHN TURNER

Respondent

FILE NO/S : CCA 3 of 2001 BETWEEN : THE QUEEN

Appellant

AND

RONALD KINNEY

Respondent

(Page 2)

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : KENNEDY DCJ

File Number : IND 1452 of 1999

Catchwords:

Criminal law and procedure - Appeal by the Crown under s 688(2) of the Criminal Code (WA)against verdicts of acquittal - Costs

Legislation:

Criminal Code (WA), ss 529(b), 611A, 688(2)(b), 690(3)

Judiciary Act 1903 (Cth), s 35
Suitors Fund Act 1964 (WA), s 10(1)
Supreme Court Act 1935 (WA), s 37(1), s 37(2)

Result:

No order as to costs

Category: A

Representation:

CCA 2 of 2001

Counsel:

Appellant : Mr K M Tavener

Respondent : Mr A O Karstaedt

Solicitors:

Appellant : State Director of Public Prosecutions

Respondent : Karp Steedman Ross-Adjie

(Page 3)

CCA 3 of 2001

Counsel:

Appellant : Mr K M Tavener

Respondent : Mr R J Burbidge QC & Mr N D Pope

Solicitors:

Appellant : State Director…

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 Turner

Details

AGLC: R v Turner [2001] WASCA 344 (S)
Case: [2001] WASCA 344 (S)
Decision Date: 6 NOVEMBER 2001

CaseChat Overview and Summary

The appeal in R v Turner was brought by the Crown under section 688(2) of the Criminal Code (Western Australia) against verdicts of acquittal on two counts of sexual penetration without consent and one count of indecent assault. The case was heard by the Supreme Court of Western Australia, which upheld the appeal and ordered a new trial on the two counts of sexual penetration without consent. The Court found that the jury's verdicts of acquittal were unreasonable and that the evidence was sufficient to support convictions. The Court held that the trial judge had erred in directing the jury on the elements of the offence of sexual penetration without consent and that this error was likely to have affected the jury's verdicts. The Court also held that the trial judge had erred in failing to give a direction on the defence of belief in consent, which was likely to have affected the jury's verdicts. The Court did not make any orders as to costs.

The legal issues before the Court were whether the jury's verdicts of acquittal were unreasonable and whether the trial judge had erred in directing the jury on the elements of the offence of sexual penetration without consent and in failing to give a direction on the defence of belief in consent. The Court held that the jury's verdicts of acquittal were unreasonable and that the evidence was sufficient to support convictions on the two counts of sexual penetration without consent. The Court held that the trial judge had erred in directing the jury on the elements of the offence of sexual penetration without consent and that this error was likely to have affected the jury's verdicts. The Court also held that the trial judge had erred in failing to give a direction on the defence of belief in consent, which was likely to have affected the jury's verdicts.

Orders

Orders of the court

No order as to costs

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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