R v Beattie - [2008] QCA 299

SUPREME COURT OF QUEENSLAND

CITATION:

R v Beattie [2008] QCA 299

PARTIES:

R
v
BEATTIE, Kenneth John
(appellant)

FILE NO/S:

CA No 314 of 2007
DC No 510 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

30 September 2008

DELIVERED AT:

Brisbane

HEARING DATE:

7 August 2008

JUDGES:

Holmes JA, Wilson J and Dutney J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Convictions set aside and new trial ordered

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR GROUNDS – IRREGULARITIES IN RELATION TO JURY – PARTIALITY – where juror made comments in court – where appellant argued at trial that the comment indicated a promise to find the defendant guilty, but did not ask for the jury to be discharged – whether the jury should have been discharged – whether comment would have caused in a fair-minded observer a reasonable apprehension that the juror would not discharge his task impartially

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION –PRESENTATION OF DEFENCE CASE AND CROWN CASE AND REVIEW OF EVIDENCE – where appellant was convicted of one count of attempted indecent dealing with an intellectually impaired person and five counts of indecent dealing with an intellectually impaired person – where learned primary judge in his summing up, emphasised that the jury must deal with each count separately – where learned primary judge did not summarise the evidence relating to each individual count – whether the learned primary judge’s directions were appropriate – whether the learned primary judge sufficiently explained ‘attempt’

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – where learned primary judge failed to direct as to the meaning of ‘attempt’ – where learned primary judge, at the commencement of the trial, made comments to the jury about sentencing and costs orders – where irregularities in the identification and retention of documents – where uncertainty as to whether the jury had been given the correct version of transcripts of interviews given under s 93A of the Evidence Act 1977 (Qld) – where prejudicial evidence relating to the appellant’s drug use inadvertently placed before the jury – whether learned primary judge gave a sufficient warning as to the credibility of the complainant’s evidence – whether a miscarriage of justice occurred

Criminal Code 1899 (Qld), s 4, s 671J
Evidence Act 1977 (Qld), s 53, s 93A, s 102

Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34, cited
R v Dunrobin [2008] QCA 116, distinguished
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, cited
R v Schneiders[2007] QCA 210, cited
R v TQ

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 Beattie

Details

AGLC: R v Beattie [2008] QCA 299
Case: [2008] QCA 299
Decision Date: 30 September 2008

CaseChat Overview and Summary

The appellant, Beattie, appealed against his convictions of one count of attempted indecent dealing with an intellectually impaired person and five counts of indecent dealing with an intellectually impaired person. The primary judge had directed the jury to consider each count separately, but did not summarise the evidence for each count. The appellant argued that this omission constituted a misdirection and non-direction, as well as a miscarriage of justice. Additionally, the appellant argued that there were irregularities in relation to the jury, including a comment made by a juror that suggested partiality, and that the primary judge's failure to define "attempt" was also a misdirection. The appellant further argued that the primary judge gave an insufficient warning as to the credibility of the complainant's evidence and that prejudicial evidence relating to the appellant's drug use had been placed before the jury.
The court found that the primary judge's failure to summarise the evidence for each count was a misdirection, as was the failure to define "attempt". The court also found that the comment made by the juror did not warrant the discharge of the jury, as it did not indicate a promise to find the defendant guilty. However, the court found that the prejudicial evidence relating to the appellant's drug use and the primary judge's failure to give a sufficient warning as to the credibility of the complainant's evidence amounted to a miscarriage of justice. The court also found that there were irregularities in the identification and retention of documents and uncertainty as to whether the jury had been given the correct version of transcripts of interviews given under s 93A of the Evidence Act 1977 (Qld).
The court allowed the appeal and set aside the convictions. A new trial was ordered.

Orders

Orders of the court

Convictions set aside and new trial 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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CITATION:	R v Beattie [2008] QCA 299
PARTIES:	R v BEATTIE, Kenneth John (appellant)
FILE NO/S:	CA No 314 of 2007 DC No 510 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	30 September 2008
DELIVERED AT:	Brisbane
HEARING DATE:	7 August 2008
JUDGES:	Holmes JA, Wilson J and Dutney J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Convictions set aside and new trial ordered
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR GROUNDS – IRREGULARITIES IN RELATION TO JURY – PARTIALITY – where juror made comments in court – where appellant argued at trial that the comment indicated a promise to find the defendant guilty, but did not ask for the jury to be discharged – whether the jury should have been discharged – whether comment would have caused in a fair-minded observer a reasonable apprehension that the juror would not discharge his task impartially CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION –PRESENTATION OF DEFENCE CASE AND CROWN CASE AND REVIEW OF EVIDENCE – where appellant was convicted of one count of attempted indecent dealing with an intellectually impaired person and five counts of indecent dealing with an intellectually impaired person – where learned primary judge in his summing up, emphasised that the jury must deal with each count separately – where learned primary judge did not summarise the evidence relating to each individual count – whether the learned primary judge’s directions were appropriate – whether the learned primary judge sufficiently explained ‘attempt’ CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – where learned primary judge failed to direct as to the meaning of ‘attempt’ – where learned primary judge, at the commencement of the trial, made comments to the jury about sentencing and costs orders – where irregularities in the identification and retention of documents – where uncertainty as to whether the jury had been given the correct version of transcripts of interviews given under s 93A of the Evidence Act 1977 (Qld) – where prejudicial evidence relating to the appellant’s drug use inadvertently placed before the jury – whether learned primary judge gave a sufficient warning as to the credibility of the complainant’s evidence – whether a miscarriage of justice occurred Criminal Code 1899 (Qld), s 4, s 671J Evidence Act 1977 (Qld), s 53, s 93A, s 102 Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34, cited R v Dunrobin [2008] QCA 116, distinguished R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, cited R v Schneiders[2007] QCA 210, cited R v TQ