R v Coss

The appeal in R v Coss concerned the appellant who had been convicted by a jury of two counts of rape. The jury's decision was based on prerecorded evidence from affected child witnesses, which was presented as part of the Crown's case. The appellant's initial appeal against the conviction, on other grounds, was previously dismissed by this Court. However, the Attorney-General subsequently referred the appellant's petition for pardon to this Court in 2014, raising issues concerning the trial judge's failure to direct the jury in accordance with section 21AW(2) of the Evidence Act 1977 (Qld). The central legal issues revolved around whether this failure resulted in a miscarriage of justice, warranting the quashing of the convictions under section 668E(1) of the Criminal Code and whether the proviso in section 668E(2) could be invoked.

The Court considered the impact of the trial judge's failure to properly direct the jury regarding the use of prerecorded evidence from child witnesses. The Court found that the omission to comply with section 21AW(2) was a significant error that undermined the fairness of the trial. This procedural misstep was deemed to have the potential to affect the outcome of the trial, thereby constituting a miscarriage of justice. The Court also examined the applicability of the proviso in section 668E(2) and concluded that it was not an appropriate mechanism to address the error in this context. The failure to give the proper direction was significant enough to necessitate a retrial, as it could have influenced the jury's decision.

Given the identified errors and their potential impact on the trial's outcome, the Court allowed the appeal. Consequently, the convictions on Counts 1 and 2 on Indictment No 113 of 2012 were quashed. The Court ordered that the appellant be retried on these counts to ensure that any future trial would be conducted with all necessary procedural safeguards in place. This decision underscores the importance of adhering to legislative requirements when handling sensitive evidence in criminal trials, particularly in cases involving child witnesses.