R v AJH - [2018] QCA 86

SUPREME COURT OF QUEENSLAND

CITATION:

R v AJH [2018] QCA 86

PARTIES:

R
v
AJH
(appellant)

FILE NO/S:

CA No 362 of 2016
DC No 575 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Cairns – Date of Conviction: 2 December 2016 (Harrison DCJ)

DELIVERED ON:

9 May 2018

DELIVERED AT:

Brisbane

HEARING DATE:

30 April 2018

JUDGES:

Sofronoff P and Philippides JA and Daubney J

ORDERS:

1.   Appeal allowed in part.

2.   Conviction on count 1 quashed.

3.   Retrial ordered on count 1.

4.   Otherwise, appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where the appellant was convicted of a number of offences against the same complainant – where the appellant was convicted of a count of maintaining an unlawful sexual relationship with a child under the age of 16 years – where the appellant was also convicted on one count of indecent dealing with a child under 16 under care and one count of rape – where the jury was directed by the learned trial judge that they could rely on the indecent dealing count and/or the rape count, if they were satisfied beyond reasonable doubt of those counts, in proof of the maintaining count – where on the evidence given by the complainant at trial it became apparent that the rape count could only have occurred when she was 16 years old – whether the direction by the trial judge that the jury could rely on the rape count in proof of the maintaining count was a misdirection that occasioned a substantial miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the complainant gave evidence at trial – where the complainant was declared a special witness under s 21A Evidence Act 1977 (Qld) – where the court was closed during the giving of the complainant’s evidence under s 5 Criminal Law (Sexual Offences) Act 1978 – where the only special measure taken under s 21A during the giving of the complainant’s evidence was the provision of a support person who sat in the public gallery – where it was not apparent to the jury that a support person was present in the courtroom – where no warning under s 21A(8) was given – whether the failure to give a warning under s 21A(8) in the circumstances occasioned a miscarriage of justice

Criminal Code (Qld), s 229B
Criminal Law (Sexual Offences) Act 1978 (Qld), s 5
Evidence Act 1977 (Qld), s 21A

R v Michael (2008) 181 A Crim R 490; [2008] QCA 33, distinguished
R v Samson (2011) 221 A Crim R 295; [2011] QCA 112, discussed

COUNSEL:

M J Copley QC for the appellant
J A Wooldridge for the respondent

SOLICITORS:

McGinness & Associates for the appellant
Director of…

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 R v AJH

Details

AGLC: R v AJH [2018] QCA 86
Case: [2018] QCA 86
Decision Date: 9 May 2018

CaseChat Overview and Summary

The appellant, AJH, was convicted of a series of offences against a single complainant, including maintaining an unlawful sexual relationship with a child under 16, indecent dealing with a child under 16 under care, and rape. The appellant appealed against his conviction, arguing that the trial judge's direction to the jury amounted to a misdirection that resulted in a substantial miscarriage of justice. Additionally, the appellant argued that the failure to provide a warning to the jury about the presence of a support person for the complainant, as required under section 21A(8) of the Evidence Act 1977 (Qld), also amounted to a miscarriage of justice.

The legal issues before the court were whether the trial judge's direction to the jury, which allowed them to rely on the rape count in proof of the maintaining count, was a misdirection that resulted in a substantial miscarriage of justice, and whether the failure to provide a warning to the jury about the presence of a support person for the complainant amounted to a miscarriage of justice. The court found that the trial judge's direction was a misdirection that resulted in a substantial miscarriage of justice because it was apparent from the complainant's evidence that the rape could only have occurred when she was 16 years old. The court also found that the failure to provide a warning to the jury about the presence of a support person for the complainant amounted to a miscarriage of justice because it was not apparent to the jury that a support person was present in the courtroom.

The court allowed the appeal in part, quashed the conviction on count 1, ordered a retrial on count 1, and dismissed the appeal in all other respects. The court held that the misdirection by the trial judge regarding the rape count in proof of the maintaining count amounted to a substantial miscarriage of justice, and that the failure to provide a warning to the jury about the presence of a support person for the complainant also amounted to a miscarriage of justice. However, the court found that the other counts were not affected by these errors and that the appellant's convictions on those counts should stand.

Orders

Orders of the court

1. Appeal allowed in part.

2. Conviction on count 1 quashed.

3. Retrial ordered on count 1.

4. Otherwise, appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v AJH [2018] QCA 86
PARTIES:	R v AJH (appellant)
FILE NO/S:	CA No 362 of 2016 DC No 575 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Cairns – Date of Conviction: 2 December 2016 (Harrison DCJ)
DELIVERED ON:	9 May 2018
DELIVERED AT:	Brisbane
HEARING DATE:	30 April 2018
JUDGES:	Sofronoff P and Philippides JA and Daubney J
ORDERS:	1. Appeal allowed in part. 2. Conviction on count 1 quashed. 3. Retrial ordered on count 1. 4. Otherwise, appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where the appellant was convicted of a number of offences against the same complainant – where the appellant was convicted of a count of maintaining an unlawful sexual relationship with a child under the age of 16 years – where the appellant was also convicted on one count of indecent dealing with a child under 16 under care and one count of rape – where the jury was directed by the learned trial judge that they could rely on the indecent dealing count and/or the rape count, if they were satisfied beyond reasonable doubt of those counts, in proof of the maintaining count – where on the evidence given by the complainant at trial it became apparent that the rape count could only have occurred when she was 16 years old – whether the direction by the trial judge that the jury could rely on the rape count in proof of the maintaining count was a misdirection that occasioned a substantial miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the complainant gave evidence at trial – where the complainant was declared a special witness under s 21A Evidence Act 1977 (Qld) – where the court was closed during the giving of the complainant’s evidence under s 5 Criminal Law (Sexual Offences) Act 1978 – where the only special measure taken under s 21A during the giving of the complainant’s evidence was the provision of a support person who sat in the public gallery – where it was not apparent to the jury that a support person was present in the courtroom – where no warning under s 21A(8) was given – whether the failure to give a warning under s 21A(8) in the circumstances occasioned a miscarriage of justice Criminal Code (Qld), s 229B Criminal Law (Sexual Offences) Act 1978 (Qld), s 5 Evidence Act 1977 (Qld), s 21A R v Michael (2008) 181 A Crim R 490; [2008] QCA 33, distinguished R v Samson (2011) 221 A Crim R 295; [2011] QCA 112, discussed
COUNSEL:	M J Copley QC for the appellant J A Wooldridge for the respondent
SOLICITORS:	McGinness & Associates for the appellant Director of…