Why wife’s hitman conviction was thrown out
A JUDGE in the trial of a former Gold Coast air hostess, who was jailed for six years last year for hiring a hitman to kill her husband, misdirected the jury, an appeal court has found.
The Court of Appeal last Friday set aside Theresa Dalton's conviction, and today delivered the reasons for the unanimous decision.Theresa Dalton will now face a retrial in the Supreme Court for attempting to procure a person to murder her husband Malcolm Stewart in 2010.
She was granted bail after the decision.
Dalton had pleaded not guilty to a charge alleging she had her then boyfriend Anthony Werner hire his school friend Matthew Neels to murder her husband.
The Court of Appeal found there had been a miscarriage of justice in the way the trial judge directed the jury about Mr Werner's guilty plea to soliciting Mr Stewart's murder.
Last year, after a five-day trial in Brisbane Supreme Court, a jury found Dalton guilty of orchestrating the alleged murder plot.
She was sentenced to six years' jail, and would have been eligible for parole in August 2021.
Court of Appeal president, Justice Walter Sofronoff, Justice Philip Morrison and Justice Michael Buss had allowed Dalton to adduce new evidence for her appeal.
The judges rejected two appeal grounds, but Dalton was successful on the third ground.
The appeal was on the basis that the jury was instructed that regard could be had to Werner's guilty plea in a NSW court, in proof of the prosecution's case against Dalton.
Justice Buss said the judge misdirected the jury by instructing jurors that Werner's guilty plea was evidence of his intention that Mr Neels should kill Mr Stewart.
He said the judge did not direct the jury that the Crown could not, as a matter of law, rely upon Werner's conviction as evidence of his intention to procure Mr Stewart's murder.
"In particular, the plea was not admissible at the appellant's trial as evidence that Mr Werner in fact intended that Mr Neels should kill Mr Stewart," Justice Buss said.
During the trial the court heard the couple had been going through a divorce battle described in court as "venomous''.
It was alleged the would-be hitman, Neels, was told he could use a rifle to shoot Stewart in his own home, from an adjoining block.
Neels never went through with the plot, telling the court he "wasn't crazy'' and never intended to kill anyone, although he kept the $20,000 cash deposit he was given.
During the trial, the court heard Mr Stewart had been traumatised by his former wife's alleged actions and wore a bulletproof vest for years.
The court heard Dalton had allegedly "bankrolled'' the murder plot.
She had allegedly worn gloves while counting out $20,000 cash to put into a bag, along with Mr Stewart's photo and a note with his home and business addresses for Werner to hand to Neels.
The jury was shown Dalton's bank statements leading up to the planned "hit'', showing a series of cash withdrawals totalling $45,000, two months before Mr Stewart was to be killed.
"The couple had been going through a divorce battle described in court as "venomous".
"I had nothing to do with this, nothing whatsoever,'' Dalton told the judge after the verdict in August last year.
"I'm totally innocent, Your Honour.''
Dalton also said there had been a "catastrophic" miscarriage of justice.
"I am 67 years of age and I have never broken the law in my life - I find myself here for something that I'm not guilty of, " Dalton said.