R v Clancy

Case [2022] QCA 162

SUPREME COURT OF QUEENSLAND

CITATION:

R v Clancy [2022] QCA 162

PARTIES:

R
v
CLANCY, Darryl John
(appellant)

FILE NO/S:

CA No 262 of 2021
DC No 466 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 23 September 2021 (Dick SC DCJ)

DELIVERED ON:

31 August 2022

DELIVERED AT:

Brisbane

HEARING DATE:

19 August 2022

JUDGES:

McMurdo and Flanagan JJA and Beech AJA

ORDERS:

1.   The appeal against conviction is allowed.

2.   The verdict of guilty is set aside.

3.   A retrial is ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDINGS OF JUDGE – CONTROL OF PROCEEDINGS – OTHER MATTERS – where the appellant was convicted of one charge of rape – where the primary issue at trial was consent – where the trial judge interfered during cross-examination and closing address – where the trial judge interrupted cross-examination of the complainant to clarify a difference between consent and allow – where the trial judge interrupted closing address to explain the difference between reasonable doubt and a “niggling doubt” – meaning of reasonable doubt – meaning of consent – whether the trial judge’s interventions occasioned a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION – where the appellant was convicted of one charge of rape – where the primary issue at trial was consent – where the complainant made a prior inconsistent statement that the sex was consensual in conference with the prosecutor – where the Crown made an admission of the prior inconsistent statement – where the trial judge said for the jury to “just be careful” regarding the issue of the complainant’s belief as to consent – where the trial judge made comments as to the complainant’s credibility – where the trial judge said the prosecutor “very fairly” handed over a note of the conference despite the prosecutor being duty-bound to disclose – whether the summing up lacked balance – whether the summing up occasioned a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION – Browne v Dunn – where the trial judge directed the jury as to the rule in Browne v Dunn – difficulty of applying the rule in Browne v Dunn in criminal proceedings – whether the trial judge’s direction occasioned a miscarriage of justice

Criminal Code (Qld), s 590AB, s 644
Criminal Law (Sexual Offences) Act 1978 (Qld), s 4

Browne v Dunn (1893) 6 R 67, cited
Cook v The Queen (2016) 260 A Crim R 454; [2016] VSCA 174, cited
Galea v Galea (1990) 19 NSWLR 263, approved
Hofer v The Queen (2021) 95 ALJR 937; [2021] HCA 36, applied
Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7, cited
McKell v The Queen (2019) 264 CLR 307

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Details
AGLC
R v Clancy [2022] QCA 162
Case
[2022] QCA 162
Decision Date

CaseChat Overview and Summary

The appellant in this case was convicted of one charge of rape and appealed against the conviction. The primary issue at trial was consent, which was disputed by the parties. The court was required to determine whether the trial judge's interventions during cross-examination and closing address, the summing up's lack of balance, and the trial judge's direction about a prior inconsistent statement caused a miscarriage of justice.

The court found that the trial judge's interventions during cross-examination and closing address did not occasion a miscarriage of justice as they did not prejudice the appellant's right to a fair trial. However, the court found that the summing up lacked balance as the trial judge made comments about the complainant's credibility and the prosecutor's conduct, which could have influenced the jury's decision. Additionally, the trial judge's direction about the prior inconsistent statement was inadequate as it did not properly explain the rule in Browne v Dunn, which is difficult to apply in criminal proceedings. The court found that these errors amounted to a miscarriage of justice.

The appeal against conviction was allowed, the verdict of guilty was set aside, and a retrial was ordered. The court found that the errors made by the trial judge during the trial had a significant impact on the fairness of the proceedings, and therefore, a retrial was necessary to ensure a fair trial for the appellant.

Orders

Orders of the court

1. The appeal against conviction is allowed.

2. The verdict of guilty is set aside.

3. A retrial is ordered.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellant advances three grounds of appeal:(a)the learned trial judge’s interventions during defence counsel’s cross-examination and closing address occasioned a miscarriage of justice (Ground 1);(b)the summing up lacked balance, thereby occasioning a miscarriage of justice (Ground 2);(c)the learned trial judge did not properly direct the jury about a prior inconsistent statement (Ground 3).The evidence The Crown called four witnesses: the complainant, a friend of the complainant, a preliminary complaint witness and a police officer. As between the Crown and the appellant seven formal admissions were made pursuant to s 644 of the Criminal Code (Qld) (the Code). The appellant did not give or call evidence. On the day of the rape, the complainant travelled from the Gold Coast to Brisbane in order to celebrate her 19th birthday. After having dinner with her father, her cousin and a friend, the complainant attended a concert by herself as she only had one ticket for the event. She had consumed some alcohol at dinner and at the concert. An arrangement had been made that she would meet up with her friends after the concert. The complainant went to the Jolly Roger Bar in Fortitude Valley to wait for her friends. On arrival she had a shot of tequila as the bar’s birthday special. There was live music at the venue. The complainant initially struck up a conversation with a man and informed him that it was her birthday. This man ordered the complainant another shot and they had one together to celebrate. After the band finished playing the complainant went to the bar and ordered a drink. She was approached by the appellant. She described their initial interaction as follows:“… I was pretty friendly and just chatting about how I’d come out for my birthday, and I was waiting alone, I was waiting for friends, and just the same thing as I had sort of chatted with the other male about, just being friendly.” She described the appellant as being a lot older than her or even her father. She estimated that he was perhaps older than 40. When she informed the appellant that it was her birthday, he offered to buy her a drink and enquired what she was drinking. The complainant replied, “tequila shots”. The appellant purchased one shot each. The complainant by this stage described herself as being “very, very drunk”. She was able to walk and stand but felt “wobbly in her heels”. She informed the appellant that she had to go to the bathroom and walked off. She walked from the bar up onto the elevated stage, past the stage and into the toilet. The bathroom had two stalls with two separate wooden doors. She went to the furthest stall which was the female toilet. As she was closing the door, she was pulling up her skirt in order to go to the bathroom. As she went to close the door behind her, but as she sat down on the toilet, the door opened again and she was greeted by the appellant. He closed and locked the door behind him while she was sitting on the toilet. She thinks she said “hello” to him. The appellant watched the complainant urinate. The complainant then stood up, flushed the toilet and pulled her skirt back down. She went to the sink and commenced to wash her hands. The appellant then ran his hands up her thighs and hips and pulled her skirt up. He unzipped his jeans, put his penis inside of her and continued to thrust and have sex with her over the sink of the bathroom for approximately one minute. The complainant did not say anything to the appellant until he had finished, at which stage she asked “did you just?” and he replied “yes”. The complainant finished wiping her hands and left the bathroom.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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