R v Carney - [2016] QCA 2

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 2014

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Unreported, 28 November 2014

DELIVERED 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 made

ORDER:

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, cited

COUNSEL:

M J Copley QC for the appellant
S J Farnden for the respondent

SOLICITORS:

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,…

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 Carney

Details

AGLC: R v Carney [2016] QCA 2
Case: [2016] QCA 2
Decision Date: 2 February 2016

CaseChat Overview and Summary

In the case of R v Carney, the appellant was convicted of two counts of rape by majority verdict. The conviction arose from a situation where the appellant and the complainant had previously been in a relationship and lived together. The appellant's conviction was challenged on the basis that the trial judge misdirected the jury regarding the possibility of a majority verdict and failed to direct the jury on the use of evidence of the complainant's distressed condition. The appellant argued that these issues resulted in a miscarriage of justice.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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 2014
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane – Unreported, 28 November 2014
DELIVERED 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 made
ORDER:	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, cited
COUNSEL:	M J Copley QC for the appellant S J Farnden for the respondent
SOLICITORS:	Peter Shields Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent