R v Drake

Case [2013] QCA 222

SUPREME COURT OF QUEENSLAND

CITATION:

R v Drake [2013] QCA 222

PARTIES:

R
v
DRAKE, Lawrence James
(appellant)

FILE NO/S:

CA No 73 of 2013
DC No 109 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

16 August 2013

DELIVERED AT:

Brisbane

HEARING DATE:

29 July 2013

JUDGES:

Margaret McMurdo P, Muir JA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    Appeal be allowed.

2.    Appellant’s conviction be set aside.

3.    Appellant be retried on count 1 on the indictment.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the appellant was convicted of one count of rape – where the complainant was an “affected child” under Pt 2 Div 4A of the Evidence Act 1977 (Qld) – where a support person was present during the pre-recording of the complainant’s evidence pursuant to s 21AV – where the trial judge gave a direction as to the reception of pre-recorded evidence – where the direction did not explicitly or implicitly encompass reference to the support person – whether the trial judge erred in failing to direct the jury in accordance with s 21AW(2) as to the presence of a support person – whether a miscarriage of justice occurred

Criminal Code 1899 (Qld), s 668E(1A)
Evidence Act 1977 (Qld), s 21AK, s 21AV, s 21AW, s 93A

Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, considered
Gately v The Queen (2007) 232 CLR 208; [2007] HCA 55, considered
R v BCL[2013] QCA 108, considered
R v DM[2006] QCA 79, cited
R v Hellwig [2007] 1 Qd R 17; [2006] QCA 179, considered
R v Horvath[2013] QCA 196, considered
R v Michael (2008) 181 A Crim R 490; [2008] QCA 33, considered
R v TN (2005) 153 A Crim R 129; [2005] QCA 160, considered
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, considered

COUNSEL:

C L Morgan for the appellant
M B Lehane for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. MARGARET McMURDO P:  I agree with Muir JA’s reasons for allowing this appeal against conviction.

  1. The judge’s omission to direct the jury in accordance with s 21AW Evidence Act 1977 (Qld) as to the presence of a support person during the complainant child’s pre-recorded evidence is an error of law. This requires that a new trial be ordered unless, under s 668E(1A) Criminal Code 1899 (Qld), this Court determines there has been no substantial miscarriage of justice. See R v DM;[1] R v Michael;[2] R v BCL.[3]

    [1][2006] QCA 79, [26].

    [2][2008] QCA 33, [38].

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Details
AGLC
R v Drake [2013] QCA 222
Case
[2013] QCA 222
Decision Date

CaseChat Overview and Summary

The appellant, Drake, was convicted of one count of rape and appealed the conviction on the grounds of alleged miscarriage of justice. The dispute centred on the trial judge's handling of the complainant's evidence, who was an "affected child" under the Evidence Act 1977 (Qld). The appeal raised two key issues: whether the trial judge erred in failing to direct the jury about the presence of a support person during the pre-recording of the complainant's evidence, and whether this failure amounted to a miscarriage of justice.

The court held that the trial judge's direction on the reception of pre-recorded evidence did not explicitly or implicitly include reference to the support person, who was present during the recording. The court found that this omission constituted a non-direction, as required by section 21AW(2) of the Evidence Act. The failure to include this direction meant that the jury was not adequately informed about an important aspect of the evidence's context. This omission potentially influenced the jury's assessment of the complainant's credibility and reliability. Given the complainant's status as an "affected child," the court held that the non-direction was significant enough to amount to a miscarriage of justice.

The court allowed the appeal, set aside the appellant's conviction, and ordered a retrial on count 1 of the indictment. This decision underscores the importance of ensuring that juries are fully informed about all aspects of the evidence presented, especially in cases involving vulnerable witnesses.

Orders

Orders of the court

1. Appeal be allowed.

2. Appellant’s conviction be set aside.

3. Appellant be retried on count 1 on the indictment.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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