District Court at Beenleigh – Date of Conviction: 29 November 2018 (Chowdhury DCJ)
DELIVERED ON:
4 October 2019
DELIVERED AT:
Brisbane
HEARING DATE:
16 May 2019
JUDGES:
Sofronoff P and Mullins and Davis JJ
ORDERS:
1. Allow the appeal.
2. Quash the convictions.
3. Order a retrial.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of two counts of rape – where photographs of extracts of the complainant’s diary were admissible under s 93A of the Evidence Act and tendered during the trial – where the jury were shown the evidence of the complainant’s diary again after they had retired – where the trial judge gave the jury a direction as to the use to be put to the diary evidence – whether the learned trial judge erred by not referring the jury specifically to the cross examination of the complainant on the diary
APPEAL AND NEW TRIAL – NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS – IN GENERAL – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES INVOLVING MISCARRIAGE – MISDIRECTION – where the appellant made statements the morning after the alleged offence denying the offending – where the statements could only be proved to be lies by proof of the charged offences – where the Crown prosecutor put to the jury that the statements of denial were lies and showed a consciousness of guilt – whether the learned trial judge erred by leaving to the jury the conduct and statements of the appellant the morning after the offence as post-offence conduct – whether there was a miscarriage of justice
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the Crown case was dependent upon acceptance by the jury of the evidence of the complainant – where the appellant submitted that it was not open to the jury to accept the complainant’s evidence beyond reasonable doubt having regard to all of the evidence and competing arguments – whether it was open to the jury to find the appellant guilty
Criminal Code (Qld), s 668E Evidence Act 1977 (Qld), s 21AK, s 93A
[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 CCI [2019] QCA 202
Case
[2019] QCA 202
Decision Date
CaseChat Overview and Summary
The appellant in this case appealed against his convictions for two counts of rape. The trial took place in the Supreme Court of Queensland. The central issue was whether there was a miscarriage of justice that warranted a new trial. Specifically, the court had to determine whether the trial judge misdirected the jury on the use of the complainant's diary evidence, and whether the judge's direction regarding the appellant's statements the morning after the alleged offence constituted a misdirection or led to a miscarriage of justice. Another significant issue was whether the jury was properly directed in assessing the reliability and weight of the complainant's evidence under s 102 of the Evidence Act.
The court found that the trial judge did not err by not specifically reminding the jury of the cross-examination of the complainant regarding the diary evidence. It held that the judge's direction was sufficient to remind the jury to consider the diary evidence in light of all other evidence and arguments. The court also found that the trial judge did not err by leaving the appellant's conduct and statements the morning after the offence to the jury as post-offence conduct, and that this did not lead to a miscarriage of justice. The court determined that it was open to the jury to find the appellant guilty based on the complainant's evidence, considering the whole of the evidence and the principles set out in s 102 of the Evidence Act.
The appeal was dismissed, and the convictions were upheld. The court found that there was no miscarriage of justice warranting a new trial.
Orders
Orders of the court
1. Allow the appeal.
2. Quash the convictions.
3. Order a retrial.
Background
Background to the litigation
He appeals against those convictions.Background The complainant was 14 years of age at the time of the events the subject of the indictment. She lived with her three sisters, her mother and her stepfather. About two weeks before the events in question, the complainant’s nuclear family moved to a new home in Shailer Park. On 3 October 2014 there was a gathering at the new home. Present was the complainant, her sisters, her mother, her stepfather and the appellant and his wife, the complainant’s grandmother. During the evening the adults were drinking. The family were dancing on the deck and bathing in the spa. When everyone retired for the evening, the appellant’s wife shared a bed with the complainant’s older sister in her room and the appellant slept in a bed with the complainant in the complainant’s room. The sleeping arrangements of the others in the house is not relevant. The complainant alleged that in the early hours of Saturday 4 October 2014, some time before sunrise, the complainant awoke to the appellant licking her vagina[3] and penetrating her with his finger.[4] When the complainant protested, the appellant left the room. The complainant then went into the room occupied by her grandmother and older sister and made complaint to her grandmother.[3]Count 2 on the indictment.[4]Count 1 on the indictment. The complainant’s mother saw the appellant, her father, at about 7.00 am the next morning (Saturday) pacing on the deck and looking agitated. The appellant told his daughter that “[the complainant] was acting crazy and nuts and I had to leave the bedroom to tell my wife to sleep with [the complainant] instead of me because of what she was saying.”[5] He also had a conversation with his son in law when he said “[the complainant’s] crazy. She’s lost it. I woke up to her screaming. She had no underpants on so I got angry with her. Threw her underpants back at her, told her to put them back on. And then I left the room.”[6][5]Transcript 1 - 41.[6]Transcript 2 - 7. Later on Saturday the appellant and his wife left the house. The complainant made complaint to two of her sisters and then to her mother. Police then became involved.The course of the trial As the complainant was a child, statements made by her contained in a document are admissible by force of s 93A of the Evidence Act 1977. There were three such documents. In the first recorded interview with police made on 11 October 2014 (the complainant’s first s 93A statement),[7] the complainant described how she had been raped by the appellant. She said that she could see what the appellant was doing because she had a bedside lamp which had been turned on.[8] The complainant later told her mother that her statement that the lamp was on was untrue.[7]Exhibit 1; a transcript is MFI “B”.[8]Appeal Book 231 - 232. A second interview with police to explain the story about the lamp was conducted on 15 December 2014 (the complainant’s second s 93A statement).[9][9]Exhibit 2; a transcript is MFI “C”.
Evidence
Evidence Before The Court
Section 102 of the Evidence Act referred to by his Honour is in these terms:“102 Weight to be attached to evidenceIn estimating the weight (if any) to be attached to a statement rendered admissible as evidence by this part, regard shall be had to all the circumstances from which an inference can reasonably be drawn as to the accuracy or otherwise of the statement, including—(a)the question whether or not the statement was made, or the information recorded in it was supplied, contemporaneously with the occurrence or existence of the facts to which the statement or information relates; and(b)the question whether or not the maker of the statement, or the supplier of the information recorded in it, had any incentive to conceal or misrepresent the facts.” The jury again retired at 3.49 pm. The jury returned verdicts of guilty at 4.38 pm. The point that was argued was somewhat different to that expressed in the Notice of Appeal. In the Notice of Appeal the complaint was that the judge did not remind the jury of the cross examination of the complainant on the topic of the diary. In argument the complaint was that the learned trial Judge did not remind the jury of the defence case after having the extracts from the diary read to them. That submission is founded in the High Court’s decision in Gately v The Queen[18] and subsequent decisions of this court where the principles laid down in Gately have been applied.[18](2007) 232 CLR 208. In Gately, like here, the central evidence was given by a child through the tendering of recordings of evidence given pursuant to s 93A and 21AK of the Evidence Act. After the jury retired to consider its verdict, a request was made for the video tapes. The recordings were played to the jury in the absence of the judge and counsel but under the supervision of the bailiff. Although the appeal was dismissed, that process was found to be irregular. Importantly for present purposes, Hayne J said:“[96] The purpose of reading or replaying for a jury considering its verdict some part of the evidence that has been given at the trial is only to remind the jury of what was said. The jury is required to consider the whole of the evidence. Of course the jury as a whole, or individual jurors, may attach determinative significance to only some of the evidence that has been given. And if that is the case, the jury, or those jurors, will focus upon that evidence in their deliberations. While a jury's request to be reminded of evidence that has been given in the trial should very seldom be refused, the overriding consideration is fairness of the trial. If a jury asks to be reminded of the evidence of an affected child that was pre-recorded under subdiv 3 of Div 4A of the Evidence Act and played to the jury as the evidence of that child, that request should ordinarily be met by replaying the evidence in court in the presence of the trial judge, counsel, and the accused. Depending upon the particular circumstances of the case, it may be necessary to warn the jury of the need to consider the replayed evidence in the light of countervailing evidence or considerations relied upon by the accused. It may be desirable, in some cases necessary, to repeat the instructions required by s 21AW.[19] Seldom, if ever, will it be appropriate to allow the jury unsupervised access to the record of that evidence.” (emphasis added)[19]Directions in accordance with s 21AW were given by the judge in the summing up.