R v Drake

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.