Tyson v The Queen - [2005] NTCCA 9

[Back] Jason Mathew Tyson v The Queen [2005] NTCCA 9

PARTIES: TYSON, Jason Mathew

v

THE QUEEN

TITLE OF COURT: COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION: APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO: CA 17 of 2004 (20317992)

DELIVERED: 8 July 2005

HEARING DATE: 22 June 2005

JUDGMENT OF: MILDREN, RILEY & SOUTHWOOD JJ

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – WHETHER JURY VERDICT BAD FOR UNCERTAINTY?

Three incidents of sexual intercourse charged as one count of sexual intercourse without consent – was the appellant found to have committed each of the three separate acts of sexual intercourse without consent, or just one or possibly two of those acts? – conviction not free from duplicity.

Criminal Code (NT), s 192(3)
Johnson v Miller (1937) 59 CLR 467 at 497, applied.
S v The Queen (1989) 168 CLR 266 at 280, applied.
Hoessinger v R (1992) 62 A Crim R 146 at 151, applied.
Iannella v French (1968) 119 CLR 84, applied.
Lapthorne v R [1990] WAR 207 at 211, applied.
SGT v The Queen [1999] NTCCA 72, applied.
Khouzame & Saliba (1999) 108 A Crim R 170 at 178, applied.
Wilde v The Queen (1987-1988) 164 CLR 365 at 373, applied.

EVIDENCE – RELEVANCE

Domestic violence order – whether prejudicial weight exceeded probative value? – relevant as a background factor in the relationship between the appellant and complainant.

REPRESENTATION:

Counsel:
Appellant: L. Carter
Respondent: D. Lewis

Solicitors:
Appellant: Katherine Regional Aboriginal Legal Aid Service
Respondent: Office of the Director of Public Prosecutions

Judgment category classification: B
Judgment ID Number: ril0516
Number of pages: 14

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Jason Mathew Tyson v The Queen [2005] NTCCA 9
No CA 17 of 2004 (20317992)

BETWEEN:

TYSON, Jason Mathew
Appellant

AND:

THE QUEEN
Respondent

CORAM: MILDREN, RILEY & SOUTHWOOD JJ

REASONS FOR JUDGMENT

(Delivered 8 July 2005)

MILDREN J
[1] I agree with Riley J.
RILEY J
[2] On 9 September 2004, following a trial by jury, the appellant was convicted of the offence of having sexual intercourse with his ex-wife without her consent contrary to s 192(3) of the Criminal Code. He now challenges that conviction on four grounds. It is convenient to deal with the fourth of those grounds first as it was to that ground that the attention of the parties was primarily directed.
Duplicity
[3] The rule against duplicity operates to ensure that a person charged with an offence fully understands and appreciates the case to be met. “A defendant should, at the very outset of the trial, know what is the specific offence which is being alleged against him”: Johnson v Miller (1937) 59 CLR 467 at 497. To this end the rule requires that one count on an indictment should not charge the accused person with having committed two or more separate offences: S v The Queen (1989) 168 CLR 266 at…

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 Tyson v The Queen

Details

AGLC: Tyson v The Queen [2005] NTCCA 9
Case: [2005] NTCCA 9
Decision Date: 08 July 2005

CaseChat Overview and Summary

The Court of Criminal Appeal of the Northern Territory heard an appeal by Jason Mathew Tyson against his conviction for sexual intercourse without consent. The dispute centred on whether the jury's verdict was uncertain and therefore invalid, arising from the indictment charging a single count of sexual intercourse without consent, despite the Crown's case relying on three separate incidents.

The primary legal issue before the court was whether the indictment was duplicitous, rendering the jury's verdict uncertain and leading to a substantial miscarriage of justice. This involved determining if the single charge, encompassing multiple alleged acts of sexual intercourse, allowed for the possibility that the jury was not unanimous as to which specific act or acts constituted the offence. A secondary issue concerned the admissibility and prejudicial effect of a domestic violence order between the appellant and the complainant.

The Court found that the indictment was indeed duplicitous. While the Crown argued the three incidents constituted a single course of conduct, the trial judge's directions to the jury allowed them to convict if they found consent was lacking for any one or more of the acts, without requiring unanimity on which specific act(s) formed the basis of the conviction. This created uncertainty as to the jury's findings and potentially meant the appellant was convicted without a unanimous finding of guilt on any particular act. The Court also considered the domestic violence order, ultimately finding it relevant as background context to the relationship and that the trial judge's directions adequately mitigated any prejudice.

Consequently, the Court allowed the appeal on the ground of duplicity, quashed the conviction, and ordered a new trial. The other grounds of appeal were dismissed.

Orders