Jerrard JA, Atkinson and Douglas JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:
1. Appeal against conviction dismissed 2. Application for leave to appeal against sentence refused
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL – OTHER IRREGULARITIES – appellant/applicant was charged with 42 counts of various offences mostly involving sexual offences against children – jury convicted appellant/applicant of 20 counts, acquitted on some counts and could not agree on others – during the trial the appellant/applicant complained that the trial judge, when she was a practising barrister, had had dealings with the appellant/applicant’s brother – trial judge refused to recuse herself – whether the trial judge should have declined to preside
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL – OTHER IRREGULARITIES – whether the verdicts were inconsistent and rendered the convictions unsafe and unsound
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL – OTHER IRREGULARITIES – whether the decision by the appellant/applicant’s counsel during the trial not to recall certain witnesses and not call other witnesses deprived the appellant/applicant of a defence
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL – OTHER IRREGULARITIES – where some jurors had seen the appellant/applicant wearing handcuffs during an adjournment – trial judge directed jury not to draw an adverse inference from this – trial judge refused to discharge the jury – whether trial judge should have discharged the jury
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL – OTHER IRREGULARITIES – trial judge received a note from a juror during the trial that expressed juror’s concern about being intimidated by other jurors – neither defence nor prosecution counsel requested that jury be discharged – trial judge directed jury to focus on evidence – whether a miscarriage of justice had resulted from decision not to discharge the jury
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF…
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.
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Details
AGLC
R v CX [2006] QCA 409
Case
[2006] QCA 409
Decision Date
CaseChat Overview and Summary
CX was convicted by a jury of 20 counts of various offences involving sexual offences against children. The appellant appealed against his conviction and sentence. The appeal raised multiple issues, including the trial judge's refusal to recuse herself due to prior dealings with the appellant's brother, the inconsistency of the jury's verdicts, the adequacy of the appellant's legal representation, and the trial judge's handling of various issues that arose during the trial. The court examined whether the trial judge should have recused herself, whether the verdicts were inconsistent and rendered the convictions unsafe, whether the appellant's counsel's decisions deprived the appellant of a defence, whether the trial judge should have discharged the jury in response to various incidents, whether the evidence was sufficient to prove the appellant's handwriting on certain documents, and whether the trial judge adequately directed the jury on the appellant's claim of blackmail. The court also considered whether the sentence imposed was manifestly excessive. Ultimately, the appeal against the conviction was dismissed, and the application for leave to appeal against the sentence was refused.
Orders
Orders of the court
1. Appeal against conviction dismissed
2. Application for leave to appeal against sentence refused