James v The King

The appellant, James, appealed against his conviction and sentence for two charges of sexual activity in the presence of a child under 16. The case was heard in the Court of Appeal of the Supreme Court of Queensland. The primary issue before the court was whether there was a substantial miscarriage of justice due to an irregularity in the proceeding, specifically the failure of an intermediary to take an oath as required by section 389K(4) of the Criminal Procedure Act 2009. Additionally, the court had to consider whether the convictions were reasonable and supported by the evidence given the inconsistencies between the complainant's visual audio recorded evidence and the evidence presented at the special hearing.

The court examined the requirements of section 389K of the CPA, which mandates that an intermediary must take an oath before acting in a proceeding. The court found that the failure to swear the intermediary was an irregularity. However, the court considered whether this irregularity resulted in a substantial miscarriage of justice. The court concluded that the irregularity did not lead to a substantial miscarriage of justice because the evidence of the complainant was sufficiently clear and reliable to support the conviction on charge 6. Regarding charge 2, the court found the conviction was not reasonable or supported by the evidence due to inconsistencies in the complainant's testimony. Therefore, the court set aside the conviction for charge 2 and entered a judgment of acquittal. For charge 6, the court set aside the sentence of 16 months’ imprisonment and resentenced the appellant to time served, which was 265 days.

The court allowed the appeal, set aside the conviction for charge 2, and entered a judgment of acquittal. The sentence for charge 6 was set aside, and the appellant was resentenced to the time already served, which was 265 days.