R v. Walton - [2008] QCA 9

SUPREME COURT OF QUEENSLAND

CITATION:

R v Walton [2008] QCA 9

PARTIES:

R
v
WALTON, Harold Thomas

(appellant)

FILE NO/S:

CA No 316 of 2007
DC No 255 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

8 February 2008

DELIVERED AT:

Brisbane

HEARING DATE:

1 February 2008

JUDGES:

McMurdo P, Fraser JA and Mackenzie J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Appeal allowed. Set aside the convictions on counts 1 and 2 and order that there be a new trial on each count

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION - where appellant charged with two counts of unlawfully and indecently dealing with a child - where redirection to jury spoke of whether there was a “good chance” the touching was accidental – whether the jury were misdirected as to the onus and standard of proof.

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – where the addresses of counsel referred to the complainant’s distressed condition – whether the learned trial Judge should have directed the jury as to the relevance, use and dangers of such evidence.

Thomas v R (1960) 102 CLR 584, applied
Green v R (1971) 126 CLR 28, applied

R v Irlam: ex parte A-G (Qld) [2002] QCA 235, cited
R v Punj [2002] QCA 333, considered

R v Rutherford [2004] QCA 481, distinguished

COUNSEL:

B W Farr SC for the appellant
M J Copley for the respondent

SOLICITORS:

Ryan and Bosscher Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

McMURDO P: The appeal should be allowed, the convictions set aside and a new trial ordered on each count for the reasons given by Mackenzie J.

FRASER JA: I agree with the reasons of Mackenzie J and the orders proposed by his Honour.

MACKENZIE J: The appellant was convicted of two counts of unlawfully and indecently dealing with a child under 16 years who was under his care. Both offences were alleged to have occurred on the same day in relation to a 14 year old girl who, with a friend, was visiting the appellant’s property near a provincial city to go horse riding.

The grounds in the notice of appeal were not argued and, by leave, the following grounds were substituted:

(a) the learned Judge misdirected the jury as to the meaning of “proof beyond reasonable doubt”; and

(b) the learned trial Judge failed to direct the jury as to the relevance, use and dangers that can be made of evidence of distressed condition.

The complainant had never been to the property before, but her friend had been there many times previously. During the day the girls swam in the appellant’s pool. The complainant was wearing a bikini. At the time of…

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. Walton

Details

AGLC: R v Walton [2008] QCA 9
Case: [2008] QCA 9
Decision Date: 8 February 2008

CaseChat Overview and Summary

The appellant, Walton, was charged with two counts of unlawfully and indecently dealing with a child. The appeal arose from the trial in the Supreme Court of Victoria, where the jury found the appellant guilty on both counts. The appellant contested the conviction on the grounds that the jury had been misdirected and non-directed by the trial judge during the redirection and summation of the evidence. The crux of the appeal was whether these alleged errors were substantial enough to warrant a new trial.

The legal issues presented to the court involved whether the redirection to the jury on the question of whether the touching was accidental constituted a misdirection and whether the jury were misdirected as to the onus and standard of proof. Additionally, the court examined whether the trial judge should have directed the jury regarding the relevance, use and dangers of the complainant's distressed condition as discussed in the addresses of counsel. The appellant argued that these alleged misdirections and non-directions resulted in a miscarriage of justice.

The court found that the redirection to the jury did indeed misdirect them as to the onus and standard of proof, as it introduced a subjective and imprecise notion of a "good chance" that the touching was accidental. This was not aligned with the statutory requirements and legal principles governing the standard of proof in criminal cases. Furthermore, the court held that the trial judge should have provided directions to the jury regarding the relevance and potential dangers of the complainant's distressed condition as discussed in counsel's addresses. These directions were necessary to ensure that the jury properly assessed the reliability and weight of the complainant's testimony.

Consequently, the appeal was allowed, and the convictions on counts 1 and 2 were set aside. The court ordered that there be a new trial on each count. This decision underscores the importance of clear and precise legal directions to a jury, particularly in cases involving the credibility of a complainant and the standard of proof required for a conviction.

Orders

Orders of the court

Appeal allowed. Set aside the convictions on counts 1 and 2 and order that there be a new trial on each count

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 Walton [2008] QCA 9
PARTIES:	R v WALTON, Harold Thomas (appellant)
FILE NO/S:	CA No 316 of 2007 DC No 255 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	8 February 2008
DELIVERED AT:	Brisbane
HEARING DATE:	1 February 2008
JUDGES:	McMurdo P, Fraser JA and Mackenzie J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Appeal allowed. Set aside the convictions on counts 1 and 2 and order that there be a new trial on each count
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION - where appellant charged with two counts of unlawfully and indecently dealing with a child - where redirection to jury spoke of whether there was a “good chance” the touching was accidental – whether the jury were misdirected as to the onus and standard of proof. CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – where the addresses of counsel referred to the complainant’s distressed condition – whether the learned trial Judge should have directed the jury as to the relevance, use and dangers of such evidence. Thomas v R (1960) 102 CLR 584, applied Green v R (1971) 126 CLR 28, applied R v Irlam: ex parte A-G (Qld) [2002] QCA 235, cited R v Punj [2002] QCA 333, considered R v Rutherford [2004] QCA 481, distinguished
COUNSEL:	B W Farr SC for the appellant M J Copley for the respondent
SOLICITORS:	Ryan and Bosscher Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent