R v Wheatley - [2012] QCA 55

SUPREME COURT OF QUEENSLAND

CITATION:

R v Wheatley [2012] QCA 55

PARTIES:

R
v
WHEATLEY, Tony Shane
(appellant)

FILE NO/S:

CA No 262 of 2011
SC No 688 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

20 March 2012

DELIVERED AT:

Brisbane

HEARING DATE:

5 March 2012

JUDGE:

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

ORDERS:

1.     The appeal against convictions be allowed.

2.     The convictions in respect of all counts on the indictment be set aside.

3.     There be a re-trial on those counts.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted after a trial of 10 counts of supplying a dangerous drug with a circumstance of aggravation, seven counts of indecent treatment of a child under 16 and four counts of rape – where the complainant was a 15 year old child entrusted to the care of the appellant – where the complainant alleged that the appellant would commit sexual acts against her whilst she was greatly under the influence of cannabis – where the prosecution abandoned cognitive capacity as a ground for lack of consent – where the trial judge did not direct the jury with respect to that abandonment – where the prosecutor personally attacked defence counsel in his closing address and drew the jury’s attention to protecting the weak and vulnerable of society – where the trial judge did not specifically direct the jury with respect to these aspects of the prosecutor’s address – whether the trial judge’s directions with respect to the meaning of consent were inadequate – whether the prosecutor’s closing address exceeded the bounds of proper comment and submission – whether the verdicts are unreasonable and unsupported by the evidence

Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34, cited
Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30, followed
R v Cannell[2009] QCA 94, cited
R v M [1991] 2 Qd R 68, considered
R v Winchester[2011] QCA 374, considered
Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42, cited

COUNSEL:

J J Allen for the appellant
M J Copley SC for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

MUIR JA: Introduction The appellant was convicted after a trial of 10 counts of supplying a dangerous drug with a circumstance of aggravation, seven counts of indecent treatment of a child under 16 years and four counts of rape. He appeals against his convictions. Before discussing the grounds of appeal, it is desirable to say something of the evidence before the jury.

The evidence

The complainant female was aged 15 at the time of the offences. She…

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 Wheatley

Details

AGLC: R v Wheatley [2012] QCA 55
Case: [2012] QCA 55
Decision Date: 20 March 2012

CaseChat Overview and Summary

The appellant, Wheatley, appealed against his conviction on multiple counts, including supplying a dangerous drug, indecent treatment of a child under 16, and rape. The complainant, a 15-year-old child in the appellant's care, alleged that the offences occurred while she was heavily under the influence of cannabis. The prosecution did not pursue cognitive capacity as a basis for lack of consent, yet the trial judge failed to direct the jury on this matter. Additionally, the prosecutor made personal attacks on defence counsel and appealed to the jury to protect the weak and vulnerable, without the trial judge addressing these issues adequately. The appellant contended that the trial judge's directions on consent were inadequate and that the prosecutor's comments were improper. The central issues before the court were whether the trial judge's directions regarding consent were deficient, whether the prosecutor's comments were beyond proper bounds, and if the verdicts were unreasonable or unsupported by the evidence.

The court found that the trial judge's failure to address the abandonment of cognitive capacity as a lack of consent ground constituted a significant misdirection. The trial judge also did not sufficiently address the prosecutor's personal attacks on defence counsel and the appeal to protect the weak and vulnerable, which further compounded the error. These errors amounted to a miscarriage of justice. The court concluded that the verdicts were unreasonable and unsupported by the evidence, given the misdirections and the improper comments made by the prosecutor. Therefore, the appeal against convictions was allowed, the convictions on all counts were set aside, and a re-trial was ordered.

The court’s decision underscores the critical nature of proper jury directions and the necessity for prosecutors to maintain professional conduct during trials. The misdirections and improper comments significantly affected the fairness of the trial, leading to the appellant's convictions being quashed and a re-trial ordered.

Orders

Orders of the court

1. The appeal against convictions be allowed.

2. The convictions in respect of all counts on the indictment be set aside.

3. There be a re-trial on those counts.

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 Wheatley [2012] QCA 55
PARTIES:	R v WHEATLEY, Tony Shane (appellant)
FILE NO/S:	CA No 262 of 2011 SC No 688 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	20 March 2012
DELIVERED AT:	Brisbane
HEARING DATE:	5 March 2012
JUDGE:	Muir JA and Margaret Wilson AJA and Applegarth J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The appeal against convictions be allowed. 2. The convictions in respect of all counts on the indictment be set aside. 3. There be a re-trial on those counts.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted after a trial of 10 counts of supplying a dangerous drug with a circumstance of aggravation, seven counts of indecent treatment of a child under 16 and four counts of rape – where the complainant was a 15 year old child entrusted to the care of the appellant – where the complainant alleged that the appellant would commit sexual acts against her whilst she was greatly under the influence of cannabis – where the prosecution abandoned cognitive capacity as a ground for lack of consent – where the trial judge did not direct the jury with respect to that abandonment – where the prosecutor personally attacked defence counsel in his closing address and drew the jury’s attention to protecting the weak and vulnerable of society – where the trial judge did not specifically direct the jury with respect to these aspects of the prosecutor’s address – whether the trial judge’s directions with respect to the meaning of consent were inadequate – whether the prosecutor’s closing address exceeded the bounds of proper comment and submission – whether the verdicts are unreasonable and unsupported by the evidence Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34, cited Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30, followed R v Cannell[2009] QCA 94, cited R v M [1991] 2 Qd R 68, considered R v Winchester[2011] QCA 374, considered Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42, cited
COUNSEL:	J J Allen for the appellant M J Copley SC for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent