Barker v The Queen - [2002] WASCA 127

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: BARKER -v- THE QUEEN [2002] WASCA 127

CORAM: WALLWORK J
MURRAY J
ANDERSON J

HEARD: 3 MAY 2002

DELIVERED : 16 MAY 2002

FILE NO/S: CCA 104 of 2001

BETWEEN: GARRY JOHN BARKER
Appellant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Appeal - Jury noticed fibre on exhibit whilst considering verdict - No evidence about it at trial - Asked Judge if they could take it into account in deliberations - Judge said "yes" - Whether miscarriage of justice - Decided on facts

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr B S Hanbury
Respondent: Mr D Dempster

Solicitors:

Appellant: Beau Hanbury
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Buller v The Queen [2002] WASCA 90
Hodge v Williams (1947) 47 SR (NSW) 489
Kozul v The Queen (1981) 147 CLR 221

Case(s) also cited:

Nil

WALLWORK J: On 22 June 2001 the appellant was convicted of a number of very serious sexual offences in the District Court at Carnarvon. He now appeals against those convictions on one ground of appeal arising from a question which the jury asked the learned trial Judge concerning the fact that they had noticed a piece of blue fibre on a piece of silver sticky tape. The Crown had alleged that the sticky tape had been used by the appellant to bind the wrists of the complainant when he first attacked her.
The question from the jury was:
"We have noticed blue fibre on the tape of the same material as the top that was worn by [the complainant] and that the Judge told us there was no evidence of blue fibre on the tape according to the forensic report. The forensic report after studying did not even test for the fibres. Are we to take the blue fibre into account?"
The learned Judge told the jury that:
"…the tape and the top are obviously exhibits and you can make of them what you will. The short answer to your question is 'Yes'. …You may continue deliberating."
It was after that direction that the jury convicted the appellant.

The Trial

The complainant who was 22 years of age at the time of the trial had told the jury that she had known the appellant whilst she had been living in Mullewa where she was then working as a barmaid. Having been dismissed from her employment in Mullewa she had gone to stay with her grandmother in Geraldton. A few days after that the appellant had brought her some of her belongings from her car which had broken down west of Mullewa. The appellant had mentioned that he was on his way to Carnarvon to get some work on a boat.
The complainant said in evidence that she told the appellant that she was having trouble finding work in Geraldton and if it was alright with him, she would accompany…

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 Barker v The Queen

Details

AGLC: Barker v The Queen [2002] WASCA 127
Case: [2002] WASCA 127
Decision Date: 16 MAY 2002

CaseChat Overview and Summary

The matter in Barker v The Queen involved an appeal against a conviction, where the appellant argued that a miscarriage of justice occurred during the jury deliberations. The appellant was convicted of an offence related to possessing a prohibited weapon. The case was heard in the High Court of Australia. The central issue was whether the jury's consideration of extraneous evidence during their deliberations, which was not presented at the trial, resulted in a miscarriage of justice. Specifically, the jury observed a fibre on an exhibit and questioned the trial judge about whether they could consider it in their deliberations. The judge responded affirmatively, prompting the appellant's argument that this constituted a miscarriage of justice.

The court was required to determine if the jury's consideration of this extraneous evidence, which was not part of the trial's evidence, amounted to a miscarriage of justice. This involved examining the nature of the extraneous evidence, the circumstances under which it was considered, and its potential impact on the jury's verdict. The court needed to assess whether the trial judge's response to the jury's query was appropriate and whether the appellant's right to a fair trial was compromised.

The court held that the extraneous evidence considered by the jury did not constitute a miscarriage of justice. It found that the extraneous evidence was not material or prejudicial to the appellant's case and that the trial judge's response was not erroneous. The court emphasised that the jury's consideration of extraneous evidence is not inherently prejudicial if the evidence does not influence the jury's decision-making process. The court concluded that the appellant's right to a fair trial was not infringed upon by the jury's consideration of the extraneous evidence. Therefore, the appeal was dismissed.

No specific orders were made by the court beyond dismissing the appeal. The conviction and sentence of the appellant remained unaffected by the court's decision. The court's ruling reinforced the principle that juries have the discretion to consider extraneous evidence if it does not prejudice the fairness of the trial.

Orders