Jones v The Queen [2009] HCA 17

HIGH COURT OF AUSTRALIA

FRENCH CJ

HAYNE, HEYDON, KIEFEL AND BELL JJ

CHRISTOPHER CLARK JONES APPELLANT

AND

THE QUEEN RESPONDENT

Jones v The Queen

[2009] HCA 17

29 April 2009

B40/2008

ORDER

Appeal dismissed.

On appeal from the Supreme Court of Queensland

Representation

P J Callaghan SC with P E Smith and A M Hoare for the appellant (instructed by Ryan & Bosscher Lawyers)

A W Moynihan SC with B J Power for the respondent (instructed by Director of Public Prosecutions (Qld))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Jones v The Queen

Criminal law – Evidence – Joint murder trial – Admissibility of evidence adduced by accused of bad character or propensity of co-accused – Whether appellant prevented by trial judge from fully adducing relevant admissible evidence – Whether jury misdirected as to use of evidence of appellant's bad character.

Criminal law – Appeals – Application of proviso.

Words and phrases – "substantial miscarriage of justice".

Criminal Code (Q), s 668E(1A).

1. FRENCH CJ, HEYDON, KIEFEL AND BELL JJ. On 1 April 2005 the decapitated body of a youth, Morgan Jay Shepherd, was found buried in a shallow grave in bushland near Dayboro, a township north of Brisbane. The deceased's head was found nearby. There were numerous stab wounds to the body. It was not possible to determine whether many, or all, save one, had been inflicted post-mortem. It was possible that death had been occasioned by a single stab wound to the neck. 2. The deceased was last seen alive in the company of James Patrick Roughan ("Roughan") and the appellant at Roughan's home in Sandgate. The three had been drinking together. The appellant and Roughan were jointly charged with the murder of the deceased. Each pleaded not guilty to that charge. Each pleaded that he was guilty of being an accessory after the fact to the unlawful killing of the deceased by the other and to interfering with a corpse. 3. The Crown case was that either or both the appellant and Roughan murdered the deceased or that one of them murdered him and the other enabled or aided that other in the attack with the intent of causing death or grievous bodily harm[1]. 4. In out of court statements tendered at the trial Roughan and the appellant each claimed that the other had assaulted the deceased and then obtained a knife and stabbed him in the neck. The appellant's account was that he was in fear of Roughan. He described Roughan as a "psycho" and he said that Roughan had been charged with stabbing "one of his mates" on another occasion. Roughan was on bail at the date of the offence on a charge of the attempted murder of a man named McKenna ("the McKenna assault"). 5. The case against the appellant was a strong one. Apart from his admission to having been present at the time of the killing, there were a number of witnesses who gave evidence of admissions made by him to his involvement in the murder. Three of these witnesses had assisted in disposing of the body of the deceased. Each had pleaded guilty to being an accessory after the fact to the murder and received a reduction in sentence on the strength of each undertaking to give evidence in the prosecution of the appellant and Roughan[2]. Two of the witnesses who gave evidence of admissions made by the appellant were not criminally concerned in the offence. The appellant and Roughan travelled together in the same prison van on an occasion after each was charged with the murder. Their conversation was secretly recorded. The appellant's statements made in the course of the conversation may be thought supportive of the Crown case but did not include any unequivocal admission of guilt. 6. Neither the appellant nor Roughan gave evidence at the trial. Each was convicted of murder. Each appealed against his conviction to the Court of Appeal. Roughan's appeal was allowed and a new trial ordered. He has since been convicted of the murder of the deceased at the second trial. The appellant's appeal was dismissed. 7. The appellant appeals by special leave from the orders made by the Court of Appeal on the ground that there was a miscarriage of justice arising as the result of two errors in the conduct of the trial[3]. These were, first, that the trial judge (Atkinson J) prevented the appellant's counsel from "fully adducing the evidence" that Roughan had attempted to murder a friend on another occasion. An examination of the course of the trial shows that this complaint is without substance. The second ground complains of a misdirection[4]. The impugned direction was found to be erroneous in the Court of Appeal. The appellant's complaint in this Court is with the Court of Appeal's decision to nonetheless dismiss his appeal. No error in the approach the Court of Appeal took to the application of s 668E(1A) of the Criminal Code (Q)[5] is established. For the reasons that follow the appeal should be dismissed.