District Court at Brisbane – Date of Conviction: 8 August 2022 (Farr SC DCJ)
DELIVERED ON:
Date of Orders: 25 July 2023 Date of Publication of Reasons: 1 August 2023
DELIVERED AT:
Brisbane
HEARING DATE:
29 May 2023
JUDGES:
Mullins P and Livesey AJA and Callaghan J
ORDERS:
Date of Orders: 25 July 2023
1. Appeal allowed.
2. Convictions set aside.
3. New trial ordered.
4. Reasons to be published at a later date.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of maintaining a sexual relationship with a child, together with six other counts of sexual offending which included three counts of rape – where the complainant’s mother gave evidence that she spoke to the appellant about the state of the complainant’s underwear – where the appellant did not respond to the complainant’s mother and walked out of the room – where the complainant’s mother was not cross-examined about her evidence concerning what she said to the appellant – where no adequate direction was given to the jury in relation to the appellant’s silence – whether a miscarriage of justice occurred because the jury was given no directions about the appellant’s silence and conduct when the complainant’s mother put her suspicion to him
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where a written s 93A statement went into the jury room during deliberations – where the written s 93A statement was an email from the complainant to police which was prepared with the assistance of the complainant’s psychologist – where the jury were appropriately warned against giving disproportionate weight to the s 93A video recordings, which were viewed in court – where the jury was given no warning regarding the potential for disproportionate weight to be given to the written s 93A statement – where the s 93A statement at common law would have been inadmissible and self-serving – whether a miscarriage of justice was occasioned by the failure to direct the jury not to accord disproportionate weight to a statement admitted under s 93A of the Evidence Act 1977 (Qld), which went into the jury room when the jury retired to deliberate
Criminal Code (Qld), s 668E(1), s 668E(1A) Evidence Act 1977 (Qld), s 93A, s 99, s 130
[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.
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Details
AGLC
R v Bec [2023] QCA 154
Case
[2023] QCA 154
Decision Date
CaseChat Overview and Summary
The appeal in R v BEC involved the appellant who was convicted of maintaining a sexual relationship with a child, along with six other counts of sexual offending including three counts of rape. The appellant challenged the conviction, arguing that the trial judge's failure to direct the jury about the proper use of the appellant's silence and conduct when confronted by the complainant's mother, as well as the failure to direct the jury not to accord disproportionate weight to a written statement admitted under s 93A of the Evidence Act 1977 (Qld), amounted to a miscarriage of justice. The court had to determine whether these failures constituted a miscarriage of justice warranting a new trial.
The appellant's first ground of appeal was that the trial judge failed to adequately direct the jury regarding the appellant's silence and conduct when the complainant's mother confronted him with her suspicions. This issue was compounded by the absence of cross-examination on this aspect of the mother's testimony. The second ground of appeal was that the jury was not adequately warned about the potential for disproportionate weight to be given to a written s 93A statement, which was an email from the complainant to police, prepared with the assistance of the complainant's psychologist. This written statement was allowed into the jury room during deliberations.
The court found that the trial judge's failure to direct the jury about the appellant's silence and conduct when confronted by the complainant's mother was a significant oversight. Such directions are necessary to ensure that the jury does not improperly infer guilt from silence. Additionally, the court held that the failure to warn the jury not to give disproportionate weight to the written s 93A statement was another critical error. Although the jury was warned against giving disproportionate weight to the video recordings of the complainant's evidence, no such direction was given concerning the written statement. The court concluded that these errors cumulatively amounted to a miscarriage of justice.
The appeal was allowed, the appellant's convictions were set aside, and a new trial was ordered. The reasons for these decisions will be published at a later date.
Orders
Orders of the court
Date of Orders: 25 July 2023
1. Appeal allowed.
2. Convictions set aside.
3. New trial ordered.
4. Reasons to be published at a later date.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Pursuant to leave, which was not opposed, senior counsel for the appellant pressed two new grounds of appeal and abandoned all other grounds. The two grounds upon which the appellant relied are:[1]1.A miscarriage of justice occurred because the jury was given no directions about the appellant’s silence and conduct when the complainant’s mother put her suspicion to him.2.A miscarriage of justice was occasioned by the failure to direct the jury not to accord disproportionate weight to a statement admitted under s 93A of the Evidence Act 1977 (Qld) (the Evidence Act), which went into the jury room when the jury retired to deliberate.[1]Consistently with the practice of the Court, these grounds were treated as being available as of right, and no question of leave to appeal under s 668D of the Code arose, see R v O'Dempsey [2018] QCA 364, [61]-[62] (Sofronoff P, with whom Gotterson JA and Brown J agreed). The written s 93A statement which went into the jury room was an email from the complainant to police dated 10 June 2021, marked as Exhibit 4, which was prepared with the assistance of the complainant’s psychologist. Counsel for the Crown submitted that when one had regard to the way in which the trial was conducted before the jury, the appellant’s silence in response to the complainant’s mother could not have been used by the jury as evidence of an implied admission of guilt. Moreover, whilst counsel conceded that it was an irregularity to allow the complainant’s written s 93A statement to go into the jury room, there was no miscarriage because a direction in accordance with R v H was given concerning the s 93A video recordings of the complainant’s evidence and it was unlikely that the jury would have attributed the same weight to the written evidence.[2][2]R v H [1999] 2 Qd R 283 (McMurdo P, Shepherdson and Jones JJ). In this matter there was video evidence recorded pursuant to s 21AK and adduced as evidence in the trial pursuant to s 21AM of the Evidence Act, but there were also video recordings of police interviews admitted pursuant to s 93A. the parties did not suggest that the video recordings should be assessed differently depending on the section under which they were adduced, Appellant’s outline [17], Respondent’s outline, [23]. See Gately v The Queen (2007) 232 CLR 208, [67] (Hayne J). Part of the s 21AM evidence concerned questions asked about Exhibit 4. Although counsel for the Crown contended that there was no miscarriage of justice on either of the new grounds pleaded, he accepted that if this Court found otherwise, this was not an appropriate case for the application of the proviso.[3][3]Having regard to the approach taken in cases such as Orreal v The Queen (2021) 96 ALJR 78, [20]-[22] (Kiefel CJ and Keane J). For the reasons that follow, the Crown’s contentions should be rejected and the appeal should be allowed. It was necessary to direct the jury about the proper use to be made of the appellant’s silence and conduct when he was effectively accused of sexual assault by the complainant’s mother on 16 September 2020.
Decision
Reasons for decision
As has been seen, the Crown conceded that the proviso should not be applied. That concession was properly made. It follows that appeal ground 2 should be upheld.Conclusion The appeal should be allowed, the appellant’s convictions should be set aside, and a new trial ordered. CALLAGHAN J: Both grounds of appeal are problematic; in effect they aver that the learned trial judge ought to have done something that he was not asked to do. However, for the reasons explained by Livesey AJA, the arguments made in support of both grounds demonstrate that a miscarriage of justice has occurred. Submissions under the heading of ground 1 were also met with the difficulty that the relevant evidence – as given by the complainant’s mother – was unchallenged. However, as the review conducted by Livesey AJA demonstrates, reliance upon this type of evidence is frequently fraught, since there will so often be social, cultural or other reasons that might explain a defendant’s silence. At least one potentially applicable reason was identifiable by the time the appellant had completed his evidence. It was then open to consider whether the evidence established only that a distracted middle aged man decided he had nothing of value to say on the subject of a teenage girl’s “festy underwear”. The situation was very different from, for example, Salahattin’s failure to engage with an implied but unambiguous accusation of dealing in heroin.[110] Even in that case some sort of direction was thought necessary.[110]Reasons of Livesey AJA at [44]-[45]. It was within contemplation that the condition of the underwear was something that might be discussed by the jury in the course of reasoning to a conclusion of guilt. The Crown Prosecutor would not otherwise have mentioned it in her closing address. I am unable to conclude that the jury’s attention would have been confined to the evidence about the underwear itself, divorced from the evidence about the appellant’s reaction, or lack thereof. Any consideration of the former would, inevitably in my view, be followed quickly by reference to the latter. Nothing was said to prevent jury discussion from flowing in that very natural way. As a matter of fairness, it was necessary for that discussion to be moderated by some directions. The potential for ground 2 to succeed was compromised by the bewildering absence of any attempt to keep the relevant document out of the jury room. There is nothing in the record to suggest that any attention was given to s 99 of the Evidence Act 1977 (Qld). In his address, Defence counsel made a glancing and indirect reference to the document. That forensic “use” was too slight to reflect a considered decision of the kind that should now be used against the appellant. If the document had been withheld from the jury room, and if the jury had asked to see it or for it to be read to them, the degree of interest in it would to some extent have been ascertainable. Directions could have been fashioned accordingly. Repeated requests to be reminded about the contents of the same document might have been met with concern. They would have suggested that its impact was becoming, in the context of all the evidence, disproportionate.