R v C - [1999] QCA 246

IN THE COURT OF APPEAL [1999] QCA 246
SUPREME COURT OF QUEENSLAND
CA No 21 of 1999
Brisbane
[R v C]
T H E Q U E E N
v
C

Appellant
McMurdo P
McPherson JA
Atkinson J

Judgment delivered 9 July 1999
Separate reasons for judgment of each member of the Court, each concurring as to the order made.
APPEAL AGAINST CONVICTION DISMISSED.
CATCHWORDS: CRIMINAL LAW -- APPEAL AND NEW TRIAL -- PARTICULAR GROUNDS -- UNREASONABLE OR UNSUPPORTABLE VERDICT -- APPEAL DISMISSED - whether reasonable jury could have been satisfied beyond a reasonable doubt of appellant’s guilt based on inconsistencies between complainant’s accounts and versions of mother and teacher
Evidence Act 1977 s 93A
Jones v The Queen (1997) 191 CLR 439
CRIMINAL LAW -- APPEAL AND NEW TRIAL -- SUMMING UP - whether judge’s summing up of inconsistencies in and reliability of complainant’s testimony adequate
CRIMINAL LAW -- EVIDENCE -- STANDARD OF PROOF -- DIRECTION TO JURY -- REASONABLE DOUBT - lies - whether jury has to be satisfied beyond a reasonable doubt that the accused lied - whether lie was indispensible link in chain evincing accused’s guilt
Edwards v The Queen (1993) 178 CLR 193
CRIMINAL LAW -- APPEAL AND NEW TRIAL -- PARTICULAR GROUNDS -- IRREGULARITIES IN RELATION TO EXHIBITS - where transcript of s 93A audio tape inadvertently sent to jury room - whether judge erred in not calling mistrial - whether directions to jury were adequate when transcript discovered
R v Hibbins CA 276 of 1998; 3 November 1998
CRIMINAL LAW -- APPEAL & NEW TRIAL -- PARTICULAR GROUNDS -- MISDIRECTIONS AND NONDIRECTION - whether judge’s warning to jury on hearing s 93A tape again sufficed to balance any prejudice to accused - whether judge erred in failing to revise all complainant’s cross examination and inconsistencies
R v Hibbins CA 276 of 1998; 3 November 1998

Counsel:

Mr B G Devereaux for the appellant Mr M J Byrne QC for the respondent
Solicitors: Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the
respondent
Hearing Date: 27 April 1999
REASONS FOR JUDGMENT - McMURDO P
Judgment delivered 9 July 1999

The appellant was convicted of two counts of indecent dealing with a child under the age of 12 years who was under his care. He was sentenced to 18 months imprisonment.
The appellant was married to the complainant child's mother. The complainant child was born on 3 June 1989. She was aged eight at the time of the offences in June and August 1997 and was nine and a half at the time of trial. The complainant had a younger brother. Between 29 June 1997 and 30 August 1997 the family were staying together in a motel room on the Gold Coast. The prosecution case was that on one day between these dates whilst the complainant's mother was out and the complainant's brother was in the shower, the appellant touched and kissed the complainant in the area of her vagina (count…

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 C

Details

AGLC: R v C [1999] QCA 246
Case: [1999] QCA 246
Decision Date: 9/07/1999

CaseChat Overview and Summary

In this appeal, the appellant challenges his conviction on the grounds of errors in the trial process, specifically related to the handling of the complainant's videotaped evidence. The case was heard by the Court of Appeal in Australia, where the appellant's appeal against his conviction was dismissed. The central issue revolved around whether the trial judge's handling of the replay of the complainant's taped evidence to the jury was appropriate and whether the judge adequately balanced this with the cross-examination and other evidence. The appellant's counsel argued that the trial judge failed to sufficiently remind the jury of the inconsistencies in the complainant's evidence and the importance of considering the cross-examination and other testimonies.

The court considered whether the trial judge's directions to the jury were sufficient to prevent them from giving disproportionate weight to the complainant's videotaped evidence. The court examined the trial judge's directions in the context of previous case law, specifically R v Hibbins, which provided guidance on how judges should handle such situations. The court found that the trial judge did provide adequate directions to the jury, warning them against giving undue weight to the replayed evidence and reminding them to consider all other evidence, including the cross-examination and testimonies of other witnesses. The court concluded that the judge's directions were fair and balanced, and no miscarriage of justice occurred.

Based on the findings, the Court of Appeal upheld the original conviction. The judges found that the trial judge had appropriately warned the jury about the potential for giving disproportionate weight to the replayed evidence and had balanced this with the need to consider all other evidence. The appeal was therefore dismissed, and the conviction was maintained.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Although this is a salutary reminder of the care that must be taken by the judge, counsel, associate and bailiff to ensure that the correct material is with the jury during deliberations, it is plain that the jury understood the directions given them by the judge as to the limited use to be made of the transcript by their request, despite access to the transcript, to have the tape replayed. There is no reason to conclude any miscarriage of justice has resulted here from the presence of the transcript in the jury room. Ground 3: Failure to balance the replay of the taped evidence tendered under s93A Evidence Act 1997 by referring to the cross-examination of the complainant and to other inconsistent evidence. The third ground of appeal relied upon is the failure of the learned trial judge to adequately refer the jury to the cross-examination of the complainant and the evidence of witnesses inconsistent with the complainant's evidence. After the jury heard and saw the complainant's taped evidence replayed at their request, the appellant's counsel at trial requested a redirection in accordance with R v Hibbins6 where this Court held that:7 "If the jury request to hear the evidence of the complainant child a trial judge must deal with each situation on the facts as they arise ... The judge should also warn the jury that because they are hearing the evidence in chief of the complainant repeated a second time and well after all the other evidence, they should guard against the risk of giving it disproportionate weight simply for that reason and should bear well in mind the other evidence in the case. It is not in our view necessary in every case after replaying the video tape to remind the jury of the cross-examination and re-examination of the complainant from the judge's notes or transcript, where this is not requested by the jury. In many cases this may be wise but every case will depend on its own facts. The overriding consideration for the trial judge must be fairness and balance, something which can be difficult to achieve in emotive sexual cases which are particularly likely to arouse feelings of prejudice in the jury." In a separate judgment, Shepherdson J, with whom Jones J also agreed, said that in such a situation the judge should, inter alia: "(d) ... warn the jury that because they are hearing (and seeing) the complainant's evidence-in-chief a second time and well after all the other evidence and they should guard against the risk of giving it a disproportionate weight or undue weight and should bear well in mind the other evidence in the case. (e) To assist in maintaining a fair balance, the judge should after the reading of the s93A statement or the replay of the video tape remind the jury of the complainant's cross-examination and re-examination by reading from the transcript containing that evidence given in court - of course defence counsel may not require the jury to be so reminded." The learned trial judge here declined to read the cross-examination of the complainant but gave the jury the following direction: "There is an additional warning I should give you and that is this: that it is sometimes thought - and I think you'll appreciate it's common sense - that when you have either a document before you or you see again or hear again a video recording of conversations there may be a tendency to perhaps give undue weight to what you see and hear on that video or what you read on the transcript. I mean, that is only human nature. So what I'm going to do now is to indicate to you that you should look at that evidence, consider that evidence but also consider it in the light of the cross-examination, the other oral evidence, which, of course, is not recorded on an audio or video tape. I particularly remind you of the cross-examination of the complainant girl ... where you may think that that indicated a number of inconsistencies in her evidence. The Crown, of course, suggests that there were many consistencies and inconsistencies. I also remind you of the evidence of the other two persons, particularly the complainant's mother and the school teacher . Compare their evidence with the evidence given by the complainant girl. As I have explained to you and I'll explain to you again, you must try to adopt a very fair approach and have regard to all of the evidence. Don't give undue weight to the evidence which you have seen and heard a second time without considering the cross-examination and re- examination which you haven't heard a second time. Now having said that, I can indicate to you that if you request it any passage of the transcript can be read back to you if you need to be reminded of it. I'm not going to do it at this stage, but if you request it, in particular, the cross-examination of the complainant girl ... you will be brought back into court and that will be done. So you might give that consideration. If you request any of the evidence, either her evidence or any of the other witnesses, be read back to you that can be done. Unfortunately, I'm not permitted to give you a copy of the transcript of the evidence to read for yourselves."

Decision

Reasons for decision

ATKINSON J (dissent)

I agree with the reasons of the President for dismissing this appeal against conviction. REASONS FOR JUDGMENT - Judgment delivered 9 July 1999 I agree with the reasons of the President and the order she proposes. 1. See Jones v The Queen (1997) 191 CLR 439. 2. (1993) 178 CLR 193. 3. Ibid, at 210. 4. CA 276 of 1998, 3 November 1998. 5. (1993) 179 CLR 44. 6. CA 276 of 1998, 3 November 1998. 7. McMurdo P (Jones J agreeing) at [17].

Ratio Decidendi

Legal Principle Established

Established by:

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IN THE COURT OF APPEAL	[1999] QCA 246
SUPREME COURT OF QUEENSLAND

Counsel:	Mr B G Devereaux for the appellant Mr M J Byrne QC for the respondent
Solicitors:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent
Hearing Date:	27 April 1999