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R v Walton and Harman

R v Walton and Harman

Case [2001] QCA 309 7 August 2001

Criminal Liability

Jurisdiction

Judicial Review

Admissibility of Evidence

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SUPREME COURT OF QUEENSLAND

CITATION: R v Walton and Harman [2001] QCA 309

PARTIES: R
v
WALTON, Chad Damien
(applicant/appellant)
HARMAN, Danyle Jon
(applicant/appellant)

FILE NO/S: CA No 54 of 2001
CA No 55 of 2001
DC No 67 of 2000

DIVISION: Court of Appeal

PROCEEDING: Appeal against conviction and sentence

ORIGINATING COURT: District Court at Cairns

DELIVERED ON: 7 August 2001

DELIVERED AT: Brisbane

HEARING DATE: 18 June 2001

JUDGES: McMurdo P, Thomas JA and Jones J
Joint reasons for judgment of Thomas JA and Jones J; separate reasons of McMurdo P, dissenting in part

ORDER:
In Appeal No 54 of 2001:

1.Appeal against conviction of indecent assault allowed, the verdict set aside and a verdict of acquittal entered.

Appeal against conviction of rape allowed, the conviction set aside, with a direction for re-trial.2.

In Appeal No 55 of 2001:

Appeal against conviction of rape allowed, the verdict set aside and a verdict of acquittal entered.1.

Appeal against conviction of indecent assault dismissed.2.

3.    Application for leave to appeal against sentence refused.

CATCHWORDS:
CRIMINAL LAW – PARTICULAR OFFENCES – SEXUAL OFFENCES – where both accuseds and complainant affected by alcohol – where complainant had fallen asleep and woke as one accused was having sexual intercourse with her and the other was licking her breasts – where “blank spots” in complainant’s memory – whether actions of one accused encouraged the other
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JURIES – SUMMING-UP – whether judge erred in direction concerning application of s7(1)(c) Criminal Code and “joint enterprise” to commit offence

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JURIES – MISCELLANEOUS POWERS OF COURTS AND JUDGES – whether judge erred in not discharging two jurors in circumstances where they were business associates of the complainant’s mother and investigating officer’s wife, respectively

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JURIES – SUMMING UP – whether judge erred in direction concerning intoxication of complainant and resultant loss of memory – whether direction inadequate

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS – whether judge erred in admission of evidence that appellant worked as a law clerk between being charged with offence and trial

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JURIES – SUMMING UP – whether judge erred in direction on lies – whether direction deficient

CRIMINAL LAW – JURISDICTION PRACTICE AND PROCEDURE – JURIES – VERDICT – whether unsafe and unsatisfactory

Criminal Code s 7, s 7(1)(a), s 7(1)(b), s 7(1)(c), s 8
Jury Act (Qld) 1995 s 56(1)(a)

Edwards v The Queen (1993) 1978 CLR 193, distinguished
R v Brennan [1999] 2 QdR 529, considered
R v Edwards & Ors [2000] QCA 508; CA No 148,159,168 of 2000, 14 December 2000, considered
R v Lowrie and Ross [2001] 1 QdR 529, distinguished
Tangye (1997) 92 A Crim R 545, considered
Webb & Hay v R (1994) 181 CLR 41,…

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 and Harman

Details

AGLC: R v Walton and Harman [2001] QCA 309
Case: [2001] QCA 309
Decision Date: 7 August 2001

CaseChat Overview and Summary

The case of R v Walton and Harman involves two appellants who were charged with multiple sexual offences against a complainant. The Supreme Court of Victoria was tasked with determining the validity of the convictions and various legal issues surrounding the trial process. The complainant had fallen asleep and subsequently awoke to find one appellant having sexual intercourse with her and the other appellant licking her breasts. The complainant had significant memory gaps surrounding the incident, which led to questions about the extent of her consent and the roles of each appellant.

The court was required to address several legal issues, including whether the judge erred in directing the jury on the application of section 7(1)(c) of the Criminal Code concerning joint enterprise and whether the judge correctly handled the potential bias of two jurors. Additionally, the court examined the admissibility of evidence regarding the appellant's employment as a law clerk post-charge and pre-trial, as well as the sufficiency of the judge's direction on the complainant's intoxication and its effect on her memory. The court also considered whether the verdict was unsafe and unsatisfactory.

The court found that the judge erred in several aspects of the trial. The directions given to the jury regarding the joint enterprise were deemed inadequate. Furthermore, the judge should have discharged two jurors who had potential conflicts of interest due to their associations with the complainant's mother and the investigating officer's wife. The court also held that the direction concerning the complainant's intoxication and its impact on her memory was insufficient. These errors led to the conclusion that the verdict was unsafe and unsatisfactory, resulting in the setting aside of the convictions for indecent assault and rape. The court ordered a re-trial for one of the appellants and an acquittal for the other, while dismissing the appeal against the indecent assault conviction for one appellant.

The final orders included allowing the appeal against the convictions of both appellants for indecent assault and rape, setting aside the verdicts, and entering a verdict of acquittal for one appellant. The court also ordered a re-trial for the other appellant regarding the rape conviction. The application for leave to appeal against the sentence was refused.

Orders

Orders of the court

In Appeal No 54 of 2001:

1.Appeal against conviction of indecent assault allowed, the verdict set aside and a verdict of acquittal entered.

Appeal against conviction of rape allowed, the conviction set aside, with a direction for re-trial.2.

In Appeal No 55 of 2001:

Appeal against conviction of rape allowed, the verdict set aside and a verdict of acquittal entered.1.

Appeal against conviction of indecent assault dismissed.2.

3. Application for leave to appeal against sentence refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Walton and Harman [2001] QCA 309

Most Recent Citation

R v Weatherall [2001] QCA 435

Cases citing this decision · 14 of 14 shown

Shaw v Tasmania
[2022] TASCCA 2 Para 30

…ections of s 7(1) or within s 8 then she is not deemed to have committed the offence. [18] Thomas JA and Jones J pointed out in R v Walton and Harman [2001] QCA 309 at [30] that the language of joint criminal enterprise is not usually helpful when discussing criminal liability under s 7(1)(b) or s 7(1)(c). To tha…
R v Goldsworthy, Goldsworthy & Hill
[2016] QSC 220 Para 12

…8][1997] QCA 460. [39] R v Lowrie & Ross [2000] 2 Qd R 529 at 535. See also R v Sherrington & Kuchler [2001] QCA 105 [5]; R v Walton & Harman [2001] QCA 309 at [30] – [31] per Thomas JA and Jones J.…
Campbell v The State of Western Australia
[2016] WASCA 156 Para 2

…His Honour further referred to an observation by Thomas JA and Jones J in R v Walton and Harman [2001] QCA 309 to the effect that the language of joint criminal enterprise was not usually helpful when discussing criminal liability under s 7(1)(b) or s 7(1)(c). His Honour continued: To that I would add that it may…
L v The State of Western Australia
[2016] WASCA 101

…[2009] HCA 1; (2009) 236 CLR 397 R v Palmer [2005] QCA 2 R v Presley [2015] SASCFC 53; (2015) 122 SASR 476 R v Sherrington [2001] QCA 105 R v Walton [2001] QCA 309 R v Webb; Ex parte Attorney-General [1990] 2 Qd R 275 R v Wyles; Ex parte Attorney General [1977] Qd R 169 Santos v The State of Western Australia [N…
R v Gamar Eldin
[2016] QDC 206 Para 1

…s,[78] McPherson J made the following instructive, albeit generalised, observation: [77] R v Brennan [1999] 2 Qd R 529, at 531; R v Walton and Harman [2001] QCA 309, at [61]; R v Dykstra. [2011] QCA 175, at [13]. [78][1998] QCA 279, at [4].…
R v Watkins and Spry (No.2)
[2015] QDC 268 Para 1

…terms of criminal liability under s7 as distinct from s8”, it may nevertheless be relevant depending on the circumstances: R v Walton and Harman [2001] QCA 309.…
R v Bridgland, ATS and Winter
[2013] SASC 203 Para 35

…tralia , (as at 1 November 2010) ‘2 Complicity’ [130-7265]. See also: R v Petters and Parfitt [1995] Crim LR 501; R v Walton and Harman [2001] QCA 309; Taufahema v The Queen (2006) 162 A Crim R 152, 162 [28], 163 [30] (Adams J; Beazley JA and Howie J agreeing); R v Taufahema (2007) 228 CLR 232.…
Clarke v Tasmania
[2013] TASCCA 11 Para 4

…s nothing, and is not usually helpful in explaining the provision and may lead to confusion when discussing criminal liability: R v Walton and Harman [2001] QCA 309 per Thomas JA and Jones J at [30]; R v Palmer [2005] QCA 2 per Davies JA at [17] – [18], Fryberg J at [35]. (See also R v Sherrington and Kuchler [20…
R v Graham and Alliston
[2011] QCA 187 Para 1

…CJ at CL (McInerney and Sully JJ agreeing), which was referred to with approval in the context of s 7 in R v Walton and Harman [2001] QCA 309 at [30]-[31] per Thomas JA and Jones J.…
Martinez v The State of Western Australia
[2007] WASCA 143

…v Russo (2004) 11 VR 1 R v Spinks [1982] 1 All ER 587 R v Stretton [1982] VR 251 R v Sutton (1986) 5 NSWLR 697 R v Tripodi [1961] VR 186 R v Walton [2001] QCA 309 R v White [1998] 2 SCR 72 R v Williams [2001] 1 Qd R 212 R v Yuill (1994) 34 NSWLR 179 Rabey v The Queen [1980] WAR 84 Ramey v The Queen (1994) 68 ALJR…
R v Palmer
[2005] QCA 2 Para 1

…y lead to confusion, in my opinion the phrase should be avoided in directions with respect to s 8 as well as in directions with respect to s 7.[5] [2][2001] QCA 309 at [30]. [3]See R v Lowrie and Ross [2000] 2 QdR 529 at [14]. [4]See for example McAuliffe v The Queen (1995) 183 CLR 108 at 113 - 114. [5]See R v Sh…
R v Lester
[2004] QCA 34

…[4][1999] 2 QdR 529 at 530; see also R v Walton and Harmon [2001] QCA 309; CA No 54 of 2001, 7 August 2001.…
Nestorov v The Queen
[2002] WASCA 356

…4 A Crim R 327 R v Pallister [2002] WASCA 68 R v Schwabegger [1998] 4 VR 649 R v Taafe (1998) 102 A Crim R 472 R v Todd [1982] 2 NSWLR 517 R v Walton [2001] QCA 309 Tsagaris v The Queen, unreported; CCA SCt of WA; Library No 980721A; 14 December 1998…
R v Weatherall
[2001] QCA 435 Para 1

…orrect and that by that direction, he took the evidence out of the class which would require an Edwards warning. [15][1999] 2 Qd R 529 at 530 [16][2001] QCA 309…

View all 14 citing cases →

Cases cited in this decision · 5 of 5 shown

R v Edwards
[2000] QCA 508 Para 1

…3 and 54 of the Jury Act . In such a case the relevant inquiry centres upon whether there appears likely to be a “prejudice to a fair trial”. [19][2000] QCA 508.…
Zoneff v The Queen
[2000] HCA 28 Para 1

…by the High Court in Zoneff v R.[28] [27] R v Williams [1987] 2 Qd R 777, 781, 785-787; R v Fellowes & Ors [1987] 2 QdR 606, 614, 619-620. [28](2000) 200 CLR 234…
Webb v the Queen
[1994] HCA 30

…distinguished Tangye (1997) 92 A Crim R 545, considered Webb & Hay v R (1994) 181 CLR 41, considered Zoneff v R (2000) 200 CLR 234, considered COUNSEL: J D Henry for the Appellants S G Bain for the Respondent SOLICITORS: Legal Aid Queensland for the Appellants Director of Public Prosecutions (Queensland) for the re…
Edwards v The Queen
[1993] HCA 63

…7, s 7(1)(a), s 7(1)(b), s 7(1)(c), s 8 Jury Act (Qld) 1995 s 56(1)(a) Edwards v The Queen (1993) 1978 CLR 193, distinguished R v Brennan [1999] 2 QdR 529, considered R v Edwards & Ors [2000] QCA 508; CA No 148,159,168 of 2000, 14 December 2000, considered R v Lowrie and Ross [2001] 1 QdR 529, distinguished Tangye (1997) 92…
Chamberlain v The Queen (No 2)
[1984] HCA 7 Para 1

…ainst him will often be circumstantial. The magistrate should then direct himself in accordance with the decision in Chamberlain v The Queen (No.2) (1984) 153 CLR 521. The court must keep in mind not only that the inference of guilt must be the only inference reasonably consistent with all the proven facts, but also…

Legislation cited in this decision · 1

Jury Act 1995 (Qld)
1 mention (from Para 1)

CITATION:	R v Walton and Harman [2001] QCA 309
PARTIES:	R v WALTON, Chad Damien (applicant/appellant) HARMAN, Danyle Jon (applicant/appellant)
FILE NO/S:	CA No 54 of 2001 CA No 55 of 2001 DC No 67 of 2000
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against conviction and sentence
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	7 August 2001
DELIVERED AT:	Brisbane
HEARING DATE:	18 June 2001
JUDGES:	McMurdo P, Thomas JA and Jones J Joint reasons for judgment of Thomas JA and Jones J; separate reasons of McMurdo P, dissenting in part
ORDER:	In Appeal No 54 of 2001: 1.Appeal against conviction of indecent assault allowed, the verdict set aside and a verdict of acquittal entered. Appeal against conviction of rape allowed, the conviction set aside, with a direction for re-trial.2. In Appeal No 55 of 2001: Appeal against conviction of rape allowed, the verdict set aside and a verdict of acquittal entered.1. Appeal against conviction of indecent assault dismissed.2. 3. Application for leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – PARTICULAR OFFENCES – SEXUAL OFFENCES – where both accuseds and complainant affected by alcohol – where complainant had fallen asleep and woke as one accused was having sexual intercourse with her and the other was licking her breasts – where “blank spots” in complainant’s memory – whether actions of one accused encouraged the other CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JURIES – SUMMING-UP – whether judge erred in direction concerning application of s7(1)(c) Criminal Code and “joint enterprise” to commit offence CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JURIES – MISCELLANEOUS POWERS OF COURTS AND JUDGES – whether judge erred in not discharging two jurors in circumstances where they were business associates of the complainant’s mother and investigating officer’s wife, respectively CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JURIES – SUMMING UP – whether judge erred in direction concerning intoxication of complainant and resultant loss of memory – whether direction inadequate CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS – whether judge erred in admission of evidence that appellant worked as a law clerk between being charged with offence and trial CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JURIES – SUMMING UP – whether judge erred in direction on lies – whether direction deficient CRIMINAL LAW – JURISDICTION PRACTICE AND PROCEDURE – JURIES – VERDICT – whether unsafe and unsatisfactory Criminal Code s 7, s 7(1)(a), s 7(1)(b), s 7(1)(c), s 8 Jury Act (Qld) 1995 s 56(1)(a) Edwards v The Queen (1993) 1978 CLR 193, distinguished R v Brennan [1999] 2 QdR 529, considered R v Edwards & Ors [2000] QCA 508; CA No 148,159,168 of 2000, 14 December 2000, considered R v Lowrie and Ross [2001] 1 QdR 529, distinguished Tangye (1997) 92 A Crim R 545, considered Webb & Hay v R (1994) 181 CLR 41,…