R v Wardle - [2011] QCA 339

SUPREME COURT OF QUEENSLAND

CITATION:

R v Wardle [2011] QCA 339

PARTIES:

R
v
WARDLE, Colin Edward
(appellant)

FILE NO/S:

CA No 28 of 2011
DC No 1893 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

25 November 2011

DELIVERED AT:

Brisbane

HEARING DATE:

4 October 2011

JUDGES:

Fraser JA, Margaret Wilson AJA and McMeekin J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal allowed.

2. The conviction and sentence are set aside.
3. A new trial is ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted after a trial of one count of doing grievous bodily harm – where the appellant’s property backed onto the complainant’s back yard and the boundary was a steep embankment – where there was enmity between the appellant and the complainant – where the injury occurred during a disagreement on top of the embankment – where the complainant alleged the appellant pushed him off the embankment – where there was evidence supporting both the Crown case and the appellant’s case – whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where the defence of accident under s 23(1)(b) of the Criminal Code 1899 (Qld) was open on the evidence – where in response to a question from the jury as to the formal definition of ‘accident’, the trial judge directed the jury that there was no formal definition of the word and it was meant to be given its natural and ordinary meaning – where this direction was wrong in law, but there were other conventional directions given – where in giving the redirections, the trial judge did not identify the factual issues and relate them to the directions – whether a miscarriage of justice occurred as a result of the misdirections

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where a number of the Crown witnesses had made prior inconsistent statements which were the subject of cross-examination by defence counsel – where, in response to a question from the jury, the trial judge directed the jury that only the witness’ oral testimony was evidence, and the documents containing the statements themselves were not evidence – where the appellant argued this direction was incorrect as a result of s 101 of the Evidence Act 1977 (Qld) – where the appellant also argued that the trial judge erred in failing to leave self-defence to the jury – where there was some evidence which supported self-defence, but no evidence as to the appellant’s belief that it was necessary to use force to defend himself against any assault…

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 Wardle

Details

AGLC: R v Wardle [2011] QCA 339
Case: [2011] QCA 339
Decision Date: 25 November 2011

CaseChat Overview and Summary

The appellant was convicted of one count of doing grievous bodily harm. The dispute between the appellant and the complainant was long-standing, with the appellant's property adjoining the complainant's backyard, separated by a steep embankment. During an altercation on the embankment, the complainant was injured, alleging that the appellant pushed him off the embankment. Both parties presented evidence, resulting in a contested trial. The central issue was whether the jury could be satisfied beyond reasonable doubt of the appellant's guilt.

The court had to determine if the verdict was unreasonable or insupportable given the evidence presented. Additionally, the court assessed whether the misdirection by the trial judge on the definition of 'accident' and the exclusion of prior inconsistent statements as evidence constituted a miscarriage of justice. The court also examined whether the failure to leave self-defence to the jury, despite some supporting evidence, amounted to a misdirection or non-direction that resulted in a miscarriage of justice.

The court found that the trial judge's misdirection on the definition of 'accident' was erroneous but did not lead to a miscarriage of justice, as the jury was otherwise properly directed. However, the exclusion of prior inconsistent statements as evidence, contrary to the Evidence Act, did not cause a miscarriage of justice as it did not prejudice the appellant's defence. The court concluded that the omission of self-defence from the jury's consideration, despite some evidence supporting it, was a misdirection that likely affected the jury's verdict. Consequently, the court allowed the appeal, set aside the conviction and sentence, and ordered a new trial.

Orders

Orders of the court

1. Appeal allowed.

2. The conviction and sentence are set aside.

3. A new trial is ordered.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Wardle [2011] QCA 339
PARTIES:	R v WARDLE, Colin Edward (appellant)
FILE NO/S:	CA No 28 of 2011 DC No 1893 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	25 November 2011
DELIVERED AT:	Brisbane
HEARING DATE:	4 October 2011
JUDGES:	Fraser JA, Margaret Wilson AJA and McMeekin J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal allowed. 2. The conviction and sentence are set aside. 3. A new trial is ordered.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted after a trial of one count of doing grievous bodily harm – where the appellant’s property backed onto the complainant’s back yard and the boundary was a steep embankment – where there was enmity between the appellant and the complainant – where the injury occurred during a disagreement on top of the embankment – where the complainant alleged the appellant pushed him off the embankment – where there was evidence supporting both the Crown case and the appellant’s case – whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where the defence of accident under s 23(1)(b) of the Criminal Code 1899 (Qld) was open on the evidence – where in response to a question from the jury as to the formal definition of ‘accident’, the trial judge directed the jury that there was no formal definition of the word and it was meant to be given its natural and ordinary meaning – where this direction was wrong in law, but there were other conventional directions given – where in giving the redirections, the trial judge did not identify the factual issues and relate them to the directions – whether a miscarriage of justice occurred as a result of the misdirections CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where a number of the Crown witnesses had made prior inconsistent statements which were the subject of cross-examination by defence counsel – where, in response to a question from the jury, the trial judge directed the jury that only the witness’ oral testimony was evidence, and the documents containing the statements themselves were not evidence – where the appellant argued this direction was incorrect as a result of s 101 of the Evidence Act 1977 (Qld) – where the appellant also argued that the trial judge erred in failing to leave self-defence to the jury – where there was some evidence which supported self-defence, but no evidence as to the appellant’s belief that it was necessary to use force to defend himself against any assault…