R v AGJ

Case [2024] QCA 124

SUPREME COURT OF QUEENSLAND

CITATION:

R v AGJ [2024] QCA 124

PARTIES:

R
v
AGJ
(appellant)

FILE NO/S:

CA No 298 of 2020
DC No 16 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Kingaroy – Date of Conviction: 27 November 2020 (Dann DCJ)

DELIVERED ON:

25 June 2024

DELIVERED AT:

Brisbane

HEARING DATES:


9 April 2024 and 4 June 2024

JUDGES:

Morrison and Boddice JJA and Davis J

ORDERS:

1.   Leave to amend the notice of appeal granted.

2.   Leave to adduce further evidence refused.

3.   Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant was convicted by a jury of 28 counts of sexual and assault offences against two of his daughters – where an application was made at trial by counsel to further cross-examine the complainants – where the primary judge granted the application, on a limited basis – where the cross-examination was restricted to concoction/collusion – whether the primary judge’s restriction of the further cross-examination caused a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where 14 photographs of handwritten notes made by the complainants were tendered at trial – where some notes included references to sexual acts – where the defence submitted the notes were evidence of concoction – where the notes were allowed in the jury room – where the jury were not warned against placing undue weight upon the notes, nor were they directed to consider them in cross examination – where these directions were not sought – whether a miscarriage of justice was occasioned by the trial judge not directing the jury not to place undue weight on the notes

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF DEFENCE COUNSEL – where the appellant contends his trial lawyers did not follow his instructions in respect of calling witnesses – where the trial solicitor’s contemporaneous notes show he accepted the advice of counsel – whether the trial lawyers failed to follow the appellant’s instructions – whether a miscarriage of justice occurred

Gately v The Queen (2007) 232 CLR 208; [2007] HCA 55, cited
House v The King (1936) 55 CLR 499; [1936] HCA 40, cited
R v AGJ [2020] QDCPR 12, cited
R v BEC[2023] QCA 154, cited
R v Marshall[2010] QCA 43, cited

COUNSEL:

The appellant appeared on his own behalf for grounds of appeal 1, 2 3 and 5
A I O’Brien and B E Taylor for the appellant for ground of appeal 4 (pro bono)
M B Lehane for the respondent

SOLICITORS:

The appellant appeared on his own…

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R v AGJ [2024] QCA 124
Case
[2024] QCA 124
Decision Date

CaseChat Overview and Summary

In the case of R v AGJ, the appellant sought to appeal against his conviction for multiple counts of sexual and assault offences against two of his daughters. The primary legal issues were whether the trial judge's restrictions on further cross-examination of the complainants, the improper admission of evidence in the form of handwritten notes, and the conduct of defence counsel amounted to a miscarriage of justice. The court examined whether the limitations imposed by the trial judge on the scope of further cross-examination of the complainants, the failure to direct the jury against placing undue weight on certain evidence, and the alleged failures of defence counsel constituted a miscarriage of justice.

The court held that the trial judge's decision to limit the scope of further cross-examination was within the bounds of judicial discretion. The judge's approach was based on the need to balance the interests of justice with the potential for oppression. The court found no miscarriage of justice in the limited scope of the cross-examination, as it focused on the significant issue of alleged concoction and collusion. Regarding the handwritten notes, the court determined that the failure to warn the jury against placing undue weight on them did not amount to a miscarriage of justice. The court also rejected the appellant's claim that his trial lawyers failed to follow his instructions, finding that the trial solicitor had accepted the advice of counsel. The court concluded that no miscarriage of justice had occurred in this regard.

The appeal was dismissed, and leave to adduce further evidence was refused. The court's decision underscored the importance of judicial discretion in managing the scope of cross-examination and the admission of evidence, as well as the need for clear communication between the accused and their legal representatives.

Orders

Orders of the court

1. Leave to amend the notice of appeal granted.

2. Leave to adduce further evidence refused.

3. Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

No error is demonstrated in respect of this aspect of the appeal.The appellant giving evidence himself The appellant’s affidavits depose that he insisted on giving evidence “to prove my innocence” and only signed the written instructions about not doing so under duress. The duress he alleges comes from the lawyers telling him that: (i) the barrister wanted the right of last address; (ii) the running of the trial had been planned that way; (iii) if he did not follow their advice, the barrister would withdraw from representing him; and (iv) the appellant did not want to be unrepresented. The instructions as to giving and calling evidence, dated 23 November 2020,[127] relevantly state:[127]Exhibit A of the appellant’s affidavit filed 11 April 2024. Emphasis in original.“5.I understand that I can if I wish I can give and or call evidence on my own behalf.6.I have discussed the case with my barrister, and in particular, I have discussed the situation in relation to my giving and calling evidence on my behalf at my trial. As a result of these discussions my barrister has given me certain advice.7.I understand that I may:7.1.give evidence on my own behalf and call evidence;7.2.give evidence on my own behalf but not call any other evidence:7.3.call evidence but not give evidence on my behalf; or7.4.neither give or call evidence on my behalf.8.I understand that if I choose to give or call evidence at my trial that:8.1.I will have the opportunity to put my story before the court;8.2.the Prosecutor will have the opportunity to cross examine me;8.3.my barrister will lose the right of last address to the Jury; and8.4.an appeal court could apply the proviso on any appeal I may make if I am convicted.9.I understand that if I give evidence at my trial that my demeanour in court, and what I say may be taken into account by the Judge and Jury.10.I understand that if I choose to give or call evidence at my trial and lose the right of last address to the Jury, that the procedure for the closing addresses will be as follows:10.1.my barrister will give his closing address to the Jury first;10.2.the Prosecutor will then give their closing address to the Jury (after my barrister);10.3.the Judge will give certain directions to the Jury; and10.4.the Jury will be sent away to reach a decision regarding my guilt.11.I confirm my legal representatives have advised me of the possible importance of the closing address to the Jury, and that if my barrister gives the last address that that will be the last address the Jury hears before the Judge gives their directions.12.I have considered the advice of my legal representatives and my rights thoroughly, and I instruct that I do not want to give evidence at my trial.…17.I understand that the decision with regard to me giving evidence and calling evidence on my behalf at my trial is entirely my own, and I make it of my own free will, independent of any undue influence by any party. Further, I make it fully understanding its implications and consequences.”

Decision

Reasons for decision

The balance of his Honour’s reasons were concerned with the issue of concoction and collusion. His Honour concluded:[20]“[27] However, and particularly having regard to the evident sense of potential oppression that may be involved, such a conclusion does not mean that there should be allowance of a fresh and full cross-examination of the witnesses. Given the accepted interconnection between some of the issues which were identified in the application and the stated reliance on some material obtained since the prior pre-recording, the limitation imposed was not to go further than the proposed topics, except as to duration, in order that the further cross-examination may be properly prepared and focused to the important points to be engaged with each witness. Therefore and subject to further order of the court, the further cross-examination of each witness was limited to 30 minutes.”[20]R v AGJ at [27]. Emphasis added. In my view, his Honour’s approach from the point of view of legal principle was unimpeachable. The primary judge referred to R v Marshall[21] for the following propositions:[22](a)the norm for cross-examination of child witnesses was that it occur on one occasion;(b)one could depart from the norm if the child witness could be recalled under the general law and if the interests of justice require the making of the order;(c)more than one cross-examination should occur only where a case has been shown that the preponderance of the interests of justice warrant that course; and(d)an obvious case where these conditions would be satisfied would arise where the case for the defence has not been put to the accused in the pre-recorded cross-examination.[21][2010] QCA 43.[22]R v AGJ at [8] and [10]. His Honour said:[23]“[11] The passage from Marshall particularly relied upon for the applicant, is not to be taken as indicating that it will always be necessary, or desirable, to have such a witness recalled simply because of some earlier failure to formally suggest what is apparently the defendant’s case or proposition. Neither is the position upon such an application to be entirely equated with the situation of the examination of forensic decisions made by counsel in respect of a completed trial process and where the question is then whether any miscarriage of justice has objectively occurred.[12]Neither, in respect of the provisions of s 21AN of the Evidence Act, are there any generally identified restrictions as to the recalling of any witness, child or adult, other than perhaps pragmatic considerations or those relating to prejudicial effect upon the position of another party. It may be observed that the exercise of discretion as to the recall of witnesses has been generally identified as being premised upon the second consideration in s 21AN and as to what is considered to be in the interests of justice. As may be noted, it was observed in R v Masters:‘This court has said that generally speaking, a judge should always accede to a request to have a witness recalled for cross examination upon a point of substance which has been overlooked - however incompetently - unless real and incurable prejudice is created for the party calling that witness: Fleming (unreported Court of Criminal Appeal, NSW, Hunt, Campbell and Matthews JJ, 12 December 1989), p 9.’”[23]R v AGJ at [11] and [12]. Footnotes omitted.

Ratio Decidendi

Legal Principle Established

On the resumption of the appeal Mr O’Brien and Mr Taylor of counsel appeared on a pro-bono basis for the appellant in a limited way. That is, written submissions had been filed to assist the appellant on the grounds he intended to argue, and counsel conducted the cross-examination of Ms Cuthbert and Ms Holland, respectively the appellant’s trial barrister and solicitor. The appellant appeared on his own behalf in so far as oral submissions were concerned on grounds 1 and 5.Consideration - ground 1 - limiting the scope of further cross-examination This ground relates to the primary judge’s decision upon an application made by counsel for the appellant, that YD and OS be further cross-examined. The reasons advanced for the further cross-examination were that the appellant’s case had not been put to the witnesses and that he had thereby been denied a fair chance of acquittal.[3][3]R v AGJ [2020] QDCPR 12 at [7]. The primary judge ruled that cross-examination was not permitted at large but restricted to certain topics advanced by the appellant’s counsel and limited to 30 minutes.[4] As identified in the outline by counsel for the appellant at the pre-trial hearing, those topics were:[5](a)to put full instructions with respect to each count; (b)to cross-examine as to inconsistencies within each complainant’s interviews admitted under s 93A of the Evidence Act 1977 (Qld);(c)to cross-examine about a motive to lie;(d)to cross-examine about the possibility of collusion in concoction; and(e)to put instructions from other defence witnesses.[4]R v AGJ.[5]Outline at paragraph [2], AB 354; R v AGJ at [7]. During the oral submissions on the application, the focus of the proposed cross-examination was narrowed to issues concerned with alleged concoction and collusion by the complainants. The appellant’s counsel identified that as an issue of “great significance” and the primary judge suggested that “it may be best in the first instance to concentrate on that point”.[6] Then, during the course of submissions the appellant’s counsel said:[7]“And the collusion concoction is so fundamental in these circumstances, it’s so fundamental to raise, that I do make the submission that [the appellant] is denied a fair chance at acquittal if he cannot raise it properly and, by doing that, my submission is it does involve cross-examining the complainants about it.”[6]AB 301 lines 2, 13-15.[7]AB 316 lines 33-37. As the prosecutor accepted, there was an overlap between the concoction and collusion issue and those relating to motive to lie and inconsistency in the police interviews.[8][8]AB 321 lines 18-25; AB 339 lines 41-47. Having explored the issue of concoction and collusion, his Honour asked about the points in paragraphs 2(a) and (e) of the outline.[9] They were: (a) to put full instructions with respect to each count, and (e) to put instructions from other defence witnesses.[9]AB 318 line 40. Counsel then identified the points that she sought to raise under sub-paragraph (a), that had not been put in the pre-recorded evidence: (i) the presence of a hole in the bathroom wall; and (ii) that the rubbing of the appellant’s legs as a result of poor circulation was commenced by an older daughter and suggested to the complainants by her.[10][10]AB 318 line 42 to AB 319 line 36.