SUPREME COURT OF QUEENSLAND
CITATION:
R v Carney [2016] QCA 2
PARTIES:
R
v
CARNEY, James Robin
(appellant)FILE NO/S:
CA No 333 of 2014
DC No 866 of 2014DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
District Court at Brisbane – Unreported, 28 November 2014DELIVERED ON:
2 February 2016
DELIVERED AT:
Brisbane
HEARING DATE:
30 November 2015
JUDGES:
Philip McMurdo JA and Jackson and Bond JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order madeORDER:
The appeal be dismissed.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION – where the appellant was convicted of two counts of rape by majority verdict – where eight hours and nine minutes had expired when the trial judge explained the possibility of a majority verdict – where the trial judge was required to calculate if the prescribed time period had passed before considering the likelihood of the jury returning a unanimous verdict – whether the trial judge complied with the preconditions under s 59A(2) Jury Act 1995 (Qld)
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of two counts of rape by majority verdict – where the appellant and complainant had previously been in a relationship and lived together – where the appellant became angry after learning of the complainant’s new relationship and caused her bodily harm – where the complainant fellated and had intercourse with the appellant because she was too scared to resist – where police found the complainant highly distressed – where the appellant argued a miscarriage of justice because the trial judge did not give a direction about the use of evidence of the complainant’s condition, although counsel for the appellant at trial did not seek such a direction – whether the lack of direction about evidence of the complainant’s distressed condition caused a miscarriage of justice
Jury Act 1995 (Qld), s 59A
Black v The Queen (1993) 179 CLR 44; [1993] HCA 71, cited
R v McClintock [2010] 1 Qd R 354; [2009] QCA 175, considered
R v Rutherford[2004] QCA 481, considered
R v Walton[2008] QCA 9, citedCOUNSEL:
M J Copley QC for the appellant
S J Farnden for the respondentSOLICITORS:
Peter Shields Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent
PHILIP McMURDO JA: By a majority verdict the appellant was convicted of two counts of rape. He appeals against those convictions ultimately upon two grounds. The first is that the essential preconditions for a majority verdict were not satisfied. The second is that the jury was not directed about the use that might be made, or not made, of evidence about the complainant’s distressed condition after the events in question. His original ground of appeal,…
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- AGLC
- R v Carney [2016] QCA 2
- Case
- [2016] QCA 2
- Decision Date
CaseChat Overview and Summary
The primary legal issues were whether the trial judge complied with the statutory preconditions for allowing a majority verdict, and whether the failure to direct the jury on the complainant's condition amounted to a miscarriage of justice. The court was required to consider whether the trial judge's actions constituted a misdirection or non-direction that prejudiced the appellant's right to a fair trial. The court assessed the effect of any misdirection and whether it was sufficient to warrant a new trial.
The court found that the trial judge had not misdirected the jury regarding the possibility of a majority verdict as the judge had followed the statutory requirements. The court also determined that the absence of a direction on the complainant's condition did not amount to a miscarriage of justice, as the appellant's counsel had not requested such a direction. The court held that the trial was conducted fairly, and the appellant's conviction was upheld.
The appeal was dismissed, and the convictions were affirmed. The court concluded that there was no basis for setting aside the appellant's convictions or ordering a new trial.
Orders
Orders of the court
The appeal be dismissed.
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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