R v Wilson

Case [2008] QCA 349

SUPREME COURT OF QUEENSLAND

CITATION:

R v Wilson [2008] QCA 349

PARTIES:

R
v
WILSON, Andrew Henry
(appellant)

FILE NO/S:

CA No 302 of 2007
CA No 136 of 2008
DC No 430 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

5 November 2008

DELIVERED AT:

Brisbane

HEARING DATES:

28 May 2008; 18 August 2008

JUDGES:

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

ORDERS:

1.Appeal against conviction allowed 
2.Verdict of guilty set aside 

3.A re-trial is ordered 

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – appellant pleaded not guilty to dangerous operation of a motor vehicle causing death and grievous bodily harm – judge expressed his intention not to direct the jury that fault was an element of the offence – counsel for prosecution and defence agreed with that course – whether fault is an element of the offence of dangerous operation of a motor vehicle – whether the judge misdirected the jury as to the elements of the offence

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – WHERE GROUNDS FOR INTERFERENCE WITH VERDICT – PARTICULAR CASES – WHERE APPEAL ALLOWED – judge directed jury on the defence of honest and reasonable mistake of fact – relevant mistaken belief was appellant's belief that there were no vehicles on the opposite side of the road and so it was safe to overtake – judge directed jury that to convict they had to be satisfied beyond reasonable doubt that a theoretical ordinary, reasonable person in the appellant's position would, could or should not have made that mistake – whether the appropriate question for the jury was whether the appellant's honest belief was based on reasonable grounds – whether the judge misdirected the jury on the defence of honest and reasonable mistake of fact – whether, despite the misdirection, no miscarriage of justice occurred

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – appellant sentenced to four years imprisonment with parole eligibility after 18 months and was disqualified from holding a driver's licence for four years – appellant showed remorse for injury to at least one victim – offence involved serious error of judgment over a short period of time – appellant had concerning traffic history but had no criminal convictions and suffered serious injuries in the accident – consideration of comparable cases

Criminal Code 1899 (Qld), s 24, s 271, s 328A, s 668E(1A)

CTM v The Queen (2008) 247 ALR 1; [2008] HCA 25, cited
Jiminez

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AGLC
R v Wilson [2008] QCA 349
Case
[2008] QCA 349
Decision Date

CaseChat Overview and Summary

In the matter of R v Wilson, the appellant was convicted of dangerous operation of a motor vehicle causing death and grievous bodily harm. The case was heard in the court of appeal where the appellant contested the conviction on several grounds. The primary issues were whether fault was an essential element of the offence of dangerous operation of a motor vehicle and whether the trial judge misdirected the jury on this point. Furthermore, the appellant argued that the judge misdirected the jury regarding the defence of honest and reasonable mistake of fact.

The court examined whether the judge correctly instructed the jury that fault was not an element of the offence, a matter upon which both counsel had agreed. The court found that the trial judge erred in expressing the intention not to direct the jury that fault was indeed an element of the offence. Additionally, the court assessed whether the judge's direction on the defence of honest and reasonable mistake of fact was appropriate, specifically if the jury should have been asked whether the appellant's belief was based on reasonable grounds. The court concluded that the misdirection on this point was significant and led to an unsafe and unsatisfactory verdict.

The court held that the misdirections concerning the elements of the offence and the defence of honest and reasonable mistake of fact warranted interference with the verdict. Consequently, the appeal against the conviction was allowed, the verdict of guilty was set aside, and a re-trial was ordered. The court did not address the appellant's appeal against the sentence as the conviction was quashed.

Orders

Orders of the court

1.Appeal against conviction allowed

2.Verdict of guilty set aside

3.A re-trial is ordered

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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