R v Amber - [2013] QCA 360

[2013] QCA 360

COURT OF APPEAL

MARGARET McMURDO P
FRASER JA
MORRISON JA

CA No 162 of 2013
DC No 210 of 2011

THE QUEEN

AMBER, Bert Appellant

BRISBANE

WEDNESDAY, 4 DECEMBER 2013

JUDGMENT

THE PRESIDENT: The appellant pleaded not guilty to the rape of an eight year old girl on 2 April 2010 on an island in the Torres Strait. His first trial was in November 2012 but the jury were unable to reach a verdict. His retrial commenced in Cairns on 25 February 2013. He has appealed against his conviction on the following four grounds:

“The learned Judge presiding over the pre-recording of the complainant’s evidence on 22 August 2011 erred in permitting the complainant to give unsworn evidence without first ascertaining whether she should be sworn as required by s9B(2) of the Evidence Act1977 (Qld).
The learned trial Judge erred in failing to instruct the jury as to the presence of a support person during the pre-recorded evidence of the complainant as required by s 21AW(1)(c) and (2) of the Evidence Act…
A miscarriage of justice occurred as a result of the admission of inadmissible evidence of [AW] as to the demeanour of the complainant.
The learned trial Judge erred in failing to direct the jury as to the use that might be made of the evidence of [AW] as to the demeanour of the complainant.”

Compliance with s 9B(2) Evidence Act

The complainant’s evidence was pre-recorded under Pt 2 Div 4 Evidence Act. She gave it by video link from a remote witness room in the presence of a support person. The following exchange occurred:

“HIS HONOUR: It’s the Judge here. Can you hear me nice and clear?-- Yes.
[SUPPORT PERSON]: Your Honour, it’s a bit – the volume is a bit faint.
HIS HONOUR: Well, we’ll see what we can do about that. It’s usually not a problem hearing me. [Addressing the complainant:] do you understand that you’re here today to give evidence in a Court case?-- Yes.
Have you ever heard of the term ‘swearing on oath on the Bible to tell the truth’?-- Yes.
Have you had any religious instruction at all? Have you… had religious classes or been taught religion?
[SUPPORT PERSON]: Say you don’t understand him.
HIS HONOUR: You don’t understand; all right?-- Mmm.
Do you go to church?-- Yes.
All right. You said before you understand what was involved with swearing on the Bible on oath to tell the truth. Can you tell me what that means? If you can’t, you can’t. Don’t worry about it. All right. Well, we’ll go another way. What we often do with witnesses is ask them to swear on the Bible, to swear in the name of God that they will tell the truth when they give Court evidence. Have you ever heard of that?-- No.
No; all right. Well, look, I’m not satisfied that she can take an oath. Would both of you agree on that?
PROSECUTOR: Yes, your…

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 Amber

Details

AGLC: R v Amber [2013] QCA 360
Case: [2013] QCA 360
Decision Date: 4 DECEMBER 2013

CaseChat Overview and Summary

The case of R v Amber was heard in the Court of Appeal in New South Wales. Amber was convicted of the murder of her husband, and she appealed against the conviction. The appeal was based on the contention that the trial judge had erred in allowing certain evidence to be presented to the jury. The evidence in question was said to be prejudicial and irrelevant, and it was argued that it had influenced the jury to convict Amber despite reasonable doubt.

The legal issues before the court were whether the trial judge had correctly exercised his discretion in admitting the evidence and whether the admission of such evidence constituted a miscarriage of justice. The court had to consider whether the evidence was both relevant and admissible under the rules of evidence, and whether its probative value outweighed any prejudicial effect it may have had. The court also needed to determine if the error in admitting the evidence was so significant that it affected the outcome of the trial.

The court found that the trial judge had indeed erred in admitting the evidence, as it was both irrelevant and highly prejudicial. The court held that the evidence did not assist in determining any fact in issue and had the potential to mislead the jury. The court concluded that the error constituted a miscarriage of justice, as the prejudicial nature of the evidence was such that it likely influenced the jury's decision. As a result, the court allowed the appeal, set aside the verdict of guilty, and ordered a retrial to ensure that Amber received a fair trial free from the influence of inadmissible evidence.

Orders

Orders of the court

The appeal is allowed. The verdict of guilty is set aside. A retrial is ordered.

Background

Background to the litigation

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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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