R v DAJ

Case [2005] QCA 40 28 February 2005

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SUPREME COURT OF QUEENSLAND

CITATION:

R v DAJ [2005] QCA 40

PARTIES:

R
v
DAJ
(appellant)

FILE NO/S:

CA No 231 of 2004
DC No 113 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Mackay

DELIVERED ON:

28 February 2005

DELIVERED AT:

Brisbane

HEARING DATE:

9 February 2005

JUDGES:

McMurdo P, Jerrard JA, Mackenzie J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeal allowed
2. Convictions on all counts set aside
3. Retrial ordered

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE – OTHER IRREGULARITIES – where appellant mentioned some prior drug use in cross-examination – where prosecutor then questioned him about the effect of drug use on him – where prosecutor asked question which suggested appellant had prior criminal history – where leave was not sought under s 15(3) of the Evidence Act 1977 (Qld) to question the appellant as to prior convictions – where defence counsel made no objection to questions – whether the trial judge erred in allowing the line of questioning to proceed

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – where trial judge exercised the discretion in s 99 of the Evidence Act 1977 (Qld) to supply the jury with the complainant’s videotaped evidence and transcripts during deliberations – where both counsel agreed to the supply of transcripts during their addresses – whether trial judge erred in not cautioning the jury as to the risks of giving that evidence disproportionate weight

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – OTHER MATTERS – where appellant scuffled with police in the jury’s presence after his bail was revoked – where trial judge removed appellant for five minutes the next day to ask the jury whether they thought they could decide the case impartially after the incident – where s 617 of the Criminal Code requires that a trial be conducted in the presence of the accused unless his conduct renders it impracticable – whether the judge addressing the jury in the appellant’s absence amounted to an error of law

Criminal Code 1899 (Qld), s 617
Evidence Act 1977 (Qld), s 15, s 93A, s 99

Jones v R (1989) 166 CLR 409, cited
Lawrence v The King [1933] AC 699, cited
R v Cornwell [1972] 2 NSWLR 1, cited
R v H [1999] 2 Qd R 283, applied
R v Stuart and Finch [1974] Qd R 297, distinguished
R v Vernell [1953] VLR 590, cited

COUNSEL:

S J Hamlyn-Harris for the appellant
R G Martin SC for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions…

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 DAJ

Details

AGLC: R v DAJ [2005] QCA 40
Case: [2005] QCA 40
Decision Date: 28 February 2005

CaseChat Overview and Summary

The appellant, DAJ, appealed against his convictions on various criminal charges, arguing that several errors during his trial amounted to a miscarriage of justice. The appeal was heard in the Queensland Court of Appeal. The primary issues were whether the trial judge erred in allowing certain lines of questioning during cross-examination, whether the judge should have cautioned the jury about the risk of giving disproportionate weight to the complainant's videotaped evidence, and whether removing the appellant from the jury's presence for questioning constituted an error of law.

The court found that the prosecutor's line of questioning, which implied the appellant had a prior criminal history and delved into his drug use without proper legal foundation, was inappropriate. The trial judge's failure to intervene when the defence did not object also contributed to the error. Additionally, the judge did not caution the jury adequately about the risks of over-relying on the complainant's videotaped evidence, which the court deemed necessary under the circumstances. Furthermore, the judge's decision to address the jury in the appellant's absence to assess their impartiality after the scuffle with police was found to be an error of law, violating the requirement that trials be conducted in the presence of the accused.

In light of these findings, the court allowed the appeal, set aside the convictions on all counts, and ordered a retrial. This decision underscores the importance of ensuring that trial proceedings adhere strictly to legal standards to protect the rights of the accused and maintain the integrity of the judicial process.

Orders

Orders of the court

1. Appeal allowed

2. Convictions on all counts set aside

3. Retrial ordered

Background

Background to the litigation

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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

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Citations

R v DAJ [2005] QCA 40

Most Recent Citation

Tessa v The King [2024] VSCA 204

Cases Citing This Decision

Reynolds v WA Police [2025] WASC 104
Citation 1 (Para 5)

…The power in CPA s 140(1) broadly reflects the position at common law.[40] [40] Tessa v R [2024] VSCA 204 [179] (reasons of the court); R v DAJ [2005] QCA 40 [6] (McMurdo P).…
Tessa v The King [2024] VSCA 204
Citation 2

…[54][2005] QCA 40, [6].…
R v BEC [2023] QCA 154
Citation 3

…[1994] 2 VR 249; [1994] VicRp 58, considered R v Bradshaw (1978) 18 SASR 83, cited R v DAJ [2005] QCA 40, considered R v FAE [2014] QCA 69, cited R v Gallagher [1998] 2 VR 671, considered R v GAO [2012] QCA 54, cited R v Grills (1910) 11 CLR 400; [1910] HCA 68, considered R v H [1999] 2 Qd R 283; [1998] QCA 348…
R v Storey [2021] QCA 265
Citation 4 (Para 24)

…thout a warning, or where no reminder is given to the jury about the competing evidence.” [4][1998] QCA 348; [1999] 2 Qd R 283 at 291. [5][2005] QCA 40. [6][2012] QCA 54 at [20] – [21]. [7][2014] QCA 69. [8](2007) 232 CLR 208; [2007] HCA 55. [9][2014] QCA 118; (2014) 241 A Crim R 508.…
R v Halliday [2018] QCA 279
Citation 5 (Para 14)

…olice and her pre-recorded evidence, including her cross examination in full. [88][2014] QCA 118. [89][2014] QCA 69. [90][2012] QCA 54. [91][2005] QCA 40.…
R v LAK [2018] QCA 30
Citation 6 (Para 30)

…r summarise to the jury any of the evidence given or called by the appellant.” [8][2014] QCA 69. [9][2012] QCA 54. [10][1999] 2 Qd R 283. [11][2005] QCA 40. [12](2007) 232 CLR 208. [13][2014] QCA 69 at [25].…
R v Taylor [2017] QCA 169
Citation 7 (Para 17)

…not to over-emphasise what was in the transcript because they had it in writing, rather than just having listened to the evidence. [9]Cf. R v DAJ [2005] QCA 40 and R v H [1999] 2 Qd R 283.…
Keenan v The Queen [2015] ACTCA 52
Citation 8 (Para 1)

…he processes of the trial, and to make decisions about how the accused should be dealt with (see for instance Eastman v R (1997) 158 ALR 107; R v DAJ [2005] QCA 40). Those judgments concern trials in which the accused’s role in his trial had been changed by orders made by the trial judge in response to what was…
R v HBJ [2014] QCA 2
Citation 9 (Para 1)

…ld also bear in mind the other evidence in the case.[4] [4] R v GAO [2012] QCA 54 at [20], referring to R v H [1999] 2 Qd R 283 and R v DAJ [2005] QCA 40.…
R v KAH [2012] QCA 154
Citation 10 (Para 1)

…that evidence disproportionate weight, a direction this Court has made clear is necessary in such circumstances: see R v H [1999] 2 Qd R 283; R v DAJ [2005] QCA 40; and R v GAO [2012] QCA 54.…
R v GAO [2012] QCA 54
Citation 11

…oportionate weight – whether a miscarriage of justice had occurred Evidence Act 1977 (Qld), s 21AW, s 93A, s 99 R v DAJ [2005] QCA 40, followed R v H [1999] 2 Qd R 283; [1998] QCA 348, applied COUNSEL: M J Copley SC for the applicant G P Cash for the respondent SOLICITORS: Legal Aid Queensland for the applicant…
R v Gately [2010] QCA 166
Citation 12

…llie (2005) 91 SASR 339; [2005] SASC 148, considered R v Cornwell [2009] QCA 294, cited R v DAJ [2005] QCA 40, considered R v East (2008) 190 A Crim R 225; [2008] QCA 144, considered R v HAU [2009] QCA 165, considered R v K; ex parte A-G(Qld) (2002) 132 A Crim R 108, [2002] QCA 260, considered R v TQ (2007) 173…
R v Ogawa [2009] QCA 307
Citation 13

…King-Emperor [1945] AC 264, cited Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57, cited R v DAJ [2005] QCA 40, cited R v Gray [1900] 2 QB 36, cited R v Mailes (2001) 53 NSWLR 251; [2001] NSWCCA 155, cited R v Morley [1988] QB 601, cited R v Ogawa [2009] QCA 201, cited R v Presser [1958] VR 45, applied R v…
R v TQ [2007] QCA 255
Citation 14

…ns should have been given pursuant to s 102 Evidence Act 1977 (Qld), s 21AW(2)(c), s 93A, s 102 R v DAJ [2005] QCA 40; CA No 231 of 2004, 28 February 2005, applied R v GT [2005] QCA 478; CA No 69 of 2005, 23 December 2005, distinguished R v H [1999] 2 Qd R 283, applied R v K; ex parte A-G (Qld) [2002] QCA 260; C…
Azzi v Volvo Car Australia Pty Ltd [2007] NSWSC 319
Citation 15

…7 ALR 241, [2006] HCA 22 Fortuna Seafoods Pty Ltd v The Ship “Eternal Wind” [2005] QCA 40 Hooper Bailie Associated Ltd v Natcon Group Pty Ltd (1992) 28 NSWLR 194 Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110 Janssen-Cilag Pty Ltd v Pfizer Pty Ltd (1992) 37 FCR 5…
R v Tichowitsch [2006] QCA 569
Citation 16 (Para 1)

…om during their deliberations (reference in that regard can be made to R v H [1999] 2 QdR 283, R v C [2000] 2 QdR 54, R v S [2002] QCA 57 and R v DAJ [2005] QCA 40). The general trend has been to say that the jury ought not have such a statement in the jury room; but if a transcript of all evidence was provided…
R v GS [2005] QCA 376
Citation 17

…[20][2005] QCA 40.…

See all citing cases →

Cases Cited

Jones v The Queen [1989] HCA 16
Citation 1 (Para 1)

…request from the appellant’s counsel at the trial that the jurors be provided with the transcript during his submission to them. [8]See Jones v R (1989) 166 CLR 409 at 411…
[1933] AC 699 [1933] AC 699
Citation 2 (Para 1)

…process that it invalidated the whole trial[7] and in itself requires that the appeal be allowed, the convictions set aside and a retrial ordered. [3][1933] AC 699, 708. [4][1953] VLR 590, 595. [5][1972] 2 NSWLR 1. [6][1974] Qd R 297. See also R v Stuart [1973] Qd R 460. [7] R v Cornwell , above.…

Legislation Cited

Evidence Act 1977 (Qld) 15
2 mentions (from Para 1)

CITATION:	R v DAJ [2005] QCA 40
PARTIES:	R v DAJ (appellant)
FILE NO/S:	CA No 231 of 2004 DC No 113 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Mackay
DELIVERED ON:	28 February 2005
DELIVERED AT:	Brisbane
HEARING DATE:	9 February 2005
JUDGES:	McMurdo P, Jerrard JA, Mackenzie J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal allowed 2. Convictions on all counts set aside 3. Retrial ordered
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE – OTHER IRREGULARITIES – where appellant mentioned some prior drug use in cross-examination – where prosecutor then questioned him about the effect of drug use on him – where prosecutor asked question which suggested appellant had prior criminal history – where leave was not sought under s 15(3) of the Evidence Act 1977 (Qld) to question the appellant as to prior convictions – where defence counsel made no objection to questions – whether the trial judge erred in allowing the line of questioning to proceed CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – where trial judge exercised the discretion in s 99 of the Evidence Act 1977 (Qld) to supply the jury with the complainant’s videotaped evidence and transcripts during deliberations – where both counsel agreed to the supply of transcripts during their addresses – whether trial judge erred in not cautioning the jury as to the risks of giving that evidence disproportionate weight CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – OTHER MATTERS – where appellant scuffled with police in the jury’s presence after his bail was revoked – where trial judge removed appellant for five minutes the next day to ask the jury whether they thought they could decide the case impartially after the incident – where s 617 of the Criminal Code requires that a trial be conducted in the presence of the accused unless his conduct renders it impracticable – whether the judge addressing the jury in the appellant’s absence amounted to an error of law Criminal Code 1899 (Qld), s 617 Evidence Act 1977 (Qld), s 15, s 93A, s 99 Jones v R (1989) 166 CLR 409, cited Lawrence v The King [1933] AC 699, cited R v Cornwell [1972] 2 NSWLR 1, cited R v H [1999] 2 Qd R 283, applied R v Stuart and Finch [1974] Qd R 297, distinguished R v Vernell [1953] VLR 590, cited
COUNSEL:	S J Hamlyn-Harris for the appellant R G Martin SC for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions…