Carton, R. v

Factual and Procedural Background

This opinion concerns a renewed application for leave to appeal against conviction for 29 counts of indecent assault involving six complainants, five female and one male. The appellant, a retired school teacher and private maths tutor, was convicted on 28 counts unanimously and on one count by an 11-1 majority. The offences spanned approximately 25 years and involved allegations of spanking and other sexual assaults. The complainants included three sisters and others unrelated to each other. The appellant had no significant previous convictions and had been a respected community member. The trial judge gave a detailed and carefully crafted jury charge, which was described as fair and balanced by defence counsel.

The appellant initially sought leave to appeal against conviction out of time without satisfactory explanation. The single judge refused leave to appeal on all grounds but granted leave to appeal against sentence, which was allowed by the Court of Appeal. The renewed application for leave to appeal the conviction was dismissed by the Court of Appeal with detailed reasons provided in this judgment.

Legal Issues Presented

1. Whether the defence of reasonable chastisement should have been considered as a complete defence despite not being raised during trial.
2. Whether the trial judge erred in failing to direct the jury that evidence relating to each complainant should be treated separately and not mutually supportive.
3. Whether the trial judge failed to properly direct the jury on the risks of collusion and contamination among complainants.
4. Whether non-disclosure of a notebook document constituted a material irregularity affecting the fairness and safety of the trial.
5. Whether there exists a lurking doubt about the safety of the convictions based on the evidence and directions given.

Arguments of the Parties

Appellant's Arguments

• The prosecution was required to disprove the defence of reasonable chastisement, which was not raised at trial and would have operated as a complete defence.
• The trial judge failed to instruct the jury clearly that evidence relating to each complainant should be considered separately to avoid improper reliance across counts.
• The judge did not provide a specific judicial direction on the possibility of collusion or contamination among the complainants, which was necessary given the circumstances.
• The prosecution failed to disclose a relevant notebook document until plea and sentence, which could have supported the defence case and undermined the Crown’s case.
• There is a lurking doubt about the correctness of the verdicts based on the evidence and jury directions.

Respondent's (Crown's) Arguments

• The defence of reasonable chastisement was never raised at trial and conflicts with the appellant’s own evidence denying use of punishment.
• The trial judge gave appropriate and repeated directions that the jury must treat each count separately and not rely on evidence from other counts.
• The risk of collusion and contamination was explored in cross-examination and addressed sufficiently in the judge’s directions without requiring a separate specific warning.
• The notebook document was not material to any real issue in the trial and its late disclosure did not render the convictions unsafe.
• The jury’s verdicts were safe and supported by evidence; there is no basis for a lurking doubt.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first addressed the procedural issue of the late application for leave to appeal, concluding the explanation for delay was inadequate and no extension of time would be granted, as the grounds lacked merit.

Regarding the defence of reasonable chastisement, the court rejected the introduction of this new ground on appeal, noting it was inconsistent with the appellant’s own trial evidence and was not raised at trial or in the original appeal.

On the issue of jury directions about separate consideration of counts, the court reviewed the trial judge’s lengthy and clear directions, finding they sufficiently instructed the jury to treat each count independently. The court emphasized that a sensible overview of the judge’s directions is appropriate rather than a hyper-technical analysis.

In relation to directions on collusion and contamination, the court distinguished this case from precedent where such directions were necessary. It found the trial judge adequately addressed these risks through cross-examination and jury cautioning, and a separate judicial direction was not required.

The court examined the alleged material irregularity of non-disclosure of a notebook document. It applied established legal principles distinguishing between the obligation to disclose and whether non-disclosure renders a conviction unsafe. The court concluded the notebook was insignificant to the real issues in the trial and its late disclosure did not undermine the safety of the convictions.

Finally, the court rejected the assertion of lurking doubt, finding the jury’s unanimous or near-unanimous verdicts were supported by evidence and a fair jury charge, leaving no basis for doubt about the safety of the convictions.

Holding and Implications

The Court of Appeal DISMISSED the renewed application for leave to appeal against conviction. The appeal was out of time without satisfactory excuse and the grounds advanced lacked merit. The convictions were held to be safe, and no new legal principles were established. The direct effect is that the appellant’s convictions stand, and no extension of time or allowance of appeal was granted on conviction grounds. The earlier successful appeal against sentence remains unaffected.