R v FAE

Case [2014] QCA 69 11 April 2014

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SUPREME COURT OF QUEENSLAND

CITATION:

R v FAE [2014] QCA 69

PARTIES:

R
v
FAE
(appellant)

FILE NO/S:

CA No 265 of 2013
DC No 20 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Gladstone

DELIVERED ON:

11 April 2014

DELIVERED AT:

Brisbane

HEARING DATE:

1 April 2014

JUDGES:

Fraser and Morrison JJA and Applegarth J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Allow the appeal.
2. Set aside the verdict on count 3.

3. Order a retrial on that count.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was charged with maintaining an unlawful sexual relationship with a child under 16 (count 1), rape (count 2), and two counts of indecently dealing with a child under 16 (counts 3 and 4) – where the jury could not agree on a verdict on counts 1 and 2, entered a majority verdict of guilty on count 3, and unanimously acquitted on count 4 – where the Crown’s case depended upon the reliability of the complainant’s evidence – whether the guilty verdict was unreasonable because it was inconsistent with the jury’s inability to agree on counts 1 and 2 – whether the guilty verdict was unreasonable because it was inconsistent with the acquittal on count 4

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – REVIEW OF EVIDENCE – where the complainant’s evidence consisted of pre-recorded evidence and a recorded interview with police – where the appellant gave and called evidence denying the charges – where the jury were granted their request to watch the complainant’s evidence for a second time – whether there had been a miscarriage of justice because the trial judge, after replaying that evidence, did not direct the jury not to give the complainant’s evidence undue weight, and did not repeat or summarise the appellant’s evidence – whether defence counsel had sought to obtain a forensic advantage by not requesting such a direction

Evidence Act 1977 (Qld), s 93A

Douglass v The Queen (2012) 86 ALJR 1086; [2012] HCA 34, cited
Gately v The Queen (2007) 232 CLR 208; [2007] HCA 55, considered
MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, applied
R v CX [2006] QCA 409, cited
R v DAL[2005] QCA 281, cited
R v GAO[2012] QCA 54, discussed
R v SBL[2009] QCA 130, cited
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, cited

COUNSEL:

P J Callaghan SC for the appellant
D L Meredith for the respondent

SOLICITORS:

Bernard Bradley & Associates for the appellant
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: The appellant pleaded not guilty to four offences: between 15 January 2006 and 27 February 2009, maintaining an unlawful sexual…

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 FAE

Details

AGLC: R v FAE [2014] QCA 69
Case: [2014] QCA 69
Decision Date: 11 April 2014

CaseChat Overview and Summary

The appellant in this case was charged with maintaining an unlawful sexual relationship with a child under 16, rape, and two counts of indecently dealing with a child under 16. The jury could not agree on counts 1 and 2, entered a majority verdict of guilty on count 3, and unanimously acquitted on count 4. The Crown’s case relied heavily on the reliability of the complainant’s evidence. The appellant appealed against the conviction on count 3, arguing that the verdict was unreasonable due to its inconsistency with the jury's failure to agree on counts 1 and 2, and the acquittal on count 4. Additionally, the appellant argued that there had been a miscarriage of justice as the trial judge did not adequately caution the jury against giving undue weight to the complainant's evidence after replaying it, nor did the judge reiterate or summarise the appellant’s evidence.

The court examined whether the jury's guilty verdict on count 3 was unreasonable given their inability to reach a consensus on counts 1 and 2. The court considered the principle that inconsistent verdicts should be viewed with caution, especially when the reliability of the complainant's evidence is central to the case. Furthermore, the court reviewed the trial judge’s instructions to the jury regarding the weight to be given to the complainant's evidence after it was replayed. The court found that the trial judge failed to properly direct the jury not to give undue weight to the complainant's evidence and neglected to summarise the appellant’s evidence, which could have led to a miscarriage of justice.

Given these findings, the court concluded that the appeal should be allowed. The conviction on count 3 was set aside, and a retrial was ordered on that count. This decision highlights the importance of consistent and fair jury instructions, particularly when the reliability of key evidence is in question. The court's ruling underscores the need for trial judges to adequately manage the presentation of evidence to ensure that the jury is not misled, which is crucial in maintaining the integrity of the judicial process.

Orders

Orders of the court

1. Allow the appeal.

2. Set aside the verdict on count 3.

3. Order a retrial on that count.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v FAE [2014] QCA 69

Most Recent Citation

R v SCG [2014] QCA 118

Cases citing this decision · 9 of 9 shown

R v Pbo
[2024] QCA 238 Para 38

…erson JA agreeing) (footnotes in original); applied in R v Halliday [2018] QCA 279 at [42] (Philippides JA, Douglas J agreeing). [14] R v FAE [2014] QCA 69 at [24]; R v SCG [2014] QCA 118 at [35]-[36]. [15] SCG [2014] QCA 118 at [35] per Morrison JA with whom the other members of the Court agreed. [16] Gately v…
R v BEC
[2023] QCA 154

…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, considered R v KAH [2012] QCA 15…
R v Storey
[2021] QCA 265 Para 24

…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 CCI
[2019] QCA 202 Para 7

…ely to have been a matter referred to by the Crown in their address. No doubt there are other matters that may arise.” [20][2012] QCA 54. [21][2014] QCA 69. [22][2014] QCA 118. [23]With whom Gotterson JA and Jackson J agreed.…
R v Halliday
[2018] QCA 279 Para 14

…complainant’s original statement to police 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 Para 30

…ts repetition and the trial judge did not appear to repeat or 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 Smith
[2014] QCA 315 Para 1

…convictions on all other counts by the prejudice stirred up against the appellant in the minds of the jury by the replaying of the evidence.[50] [46][2014] QCA 69 at [25]. [47][2014] QCA 118 at [35], [36]. [48][2014] QCA 253 at [37]. [49]As the respondent correctly submitted, since the appellant had not sought…
R v MCC
[2014] QCA 253 Para 1

…ning of the kind sought by the appellant in this appeal. See R v H ;[11] R v FAE ;[12] R v GAO [13] and R v SCG .[14] [11][1999] 2 Qd R 283, 291. [12][2014] QCA 69, [23]. [13][2012] QCA 54, [20]-[24]. [14][2014] QCA 118.…
R v SCG
[2014] QCA 118 Para 1

…ion of the appellant’s evidence, should not stand in the way of concluding that there has been a miscarriage of justice.[63] [63] R v FAE [2014] QCA 69, at [21]; TKWJ v The Queen (2002) 212 CLR 124, at [16]-[17], [25]-28], [81]-[85], [101] and [106]-[108].…

View all 9 citing cases →

Cases cited in this decision · 10 of 10 shown

R v Motlop
[2013] QCA 301 Para 1

…was expressed in that way by the trial judge, and the diverse verdicts defied reasonable explanation. [3] R v Motlop [2013] QCA 301 at [46]. [4] MacKenzie v The Queen (1996) 190 CLR 348 at 368.…
Douglass v The Queen
[2012] HCA 34

…requesting such a direction Evidence Act 1977 (Qld), s 93A Douglass v The Queen (2012) 86 ALJR 1086; [2012] HCA 34, cited Gately v The Queen (2007) 232 CLR 208; [2007] HCA 55, considered MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, applied R v CX [2006] QCA 409, cited R v DAL [2005] QCA 281, cited R…
R v GAO
[2012] QCA 54 Para 1

…be taken into the jury room. White JA, with whose reasons I and Daubney J agreed, made the following observations (I have added the emphasis): [11][2012] QCA 54.…
R v SBL
[2009] QCA 130 Para 1

…jury acted unreasonably in finding the appellant guilty on count 3. [6] Douglass v The Queen (2012) 86 ALJR 1086 at 1096 [48]. [7]See R v SBL [2009] QCA 130 at [32]. [8] MacKenzie v The Queen (1996) 190 CLR 348 at 368–369.…
Gately v The Queen
[2007] HCA 55

…Douglass v The Queen (2012) 86 ALJR 1086; [2012] HCA 34, cited Gately v The Queen (2007) 232 CLR 208; [2007] HCA 55, considered MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, applied R v CX [2006] QCA 409, cited R v DAL [2005] QCA 281, cited R v GAO [2012] QCA 54, discussed R v SBL [2009] QCA 130, cite…
R v CX
[2006] QCA 409 Para 1

…bly have considered that an acquittal on count 4 was appropriate in light of that discrepancy. [5]See the comparable analysis in R v CX [2006] QCA 409 at [33].…
R v DAL
[2005] QCA 281 Para 1

…2 cannot be equated with verdicts of not guilty such as to give rise to an inconsistency with the guilty verdict on count 3.[2] [2]See R v DAL [2005] QCA 281 per Keane JA at [21] – [28] (McMurdo P agreeing).…
TKWJ v The Queen
[2002] HCA 46

…d R v GAO [2012] QCA 54, discussed R v SBL [2009] QCA 130, cited TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, cited COUNSEL: P J Callaghan SC for the appellant D L Meredith for the respondent SOLICITORS: Bernard Bradley & Associates for the appellant Director of Public Prosecutions (Queensland) for the re…
Mackenzie v The Queen
[1996] HCA 35

…y v The Queen (2007) 232 CLR 208; [2007] HCA 55, considered MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, applied R v CX [2006] QCA 409, cited R v DAL [2005] QCA 281, cited R v GAO [2012] QCA 54, discussed R v SBL [2009] QCA 130, cited TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, cited COUNSEL:…
Black v the Queen
[1993] HCA 71 Para 1

…ey could arrive at a majority verdict on those other two charges if given more time. The trial judge then took the verdicts. [1]See Black v The Queen (1993) 179 CLR 44.…

Legislation cited in this decision · 1

Evidence Act 1977 (Qld)
93A 2 mentions (from Para 1)

CITATION:	R v FAE [2014] QCA 69
PARTIES:	R v FAE (appellant)
FILE NO/S:	CA No 265 of 2013 DC No 20 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Gladstone
DELIVERED ON:	11 April 2014
DELIVERED AT:	Brisbane
HEARING DATE:	1 April 2014
JUDGES:	Fraser and Morrison JJA and Applegarth J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Allow the appeal. 2. Set aside the verdict on count 3. 3. Order a retrial on that count.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was charged with maintaining an unlawful sexual relationship with a child under 16 (count 1), rape (count 2), and two counts of indecently dealing with a child under 16 (counts 3 and 4) – where the jury could not agree on a verdict on counts 1 and 2, entered a majority verdict of guilty on count 3, and unanimously acquitted on count 4 – where the Crown’s case depended upon the reliability of the complainant’s evidence – whether the guilty verdict was unreasonable because it was inconsistent with the jury’s inability to agree on counts 1 and 2 – whether the guilty verdict was unreasonable because it was inconsistent with the acquittal on count 4 CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – REVIEW OF EVIDENCE – where the complainant’s evidence consisted of pre-recorded evidence and a recorded interview with police – where the appellant gave and called evidence denying the charges – where the jury were granted their request to watch the complainant’s evidence for a second time – whether there had been a miscarriage of justice because the trial judge, after replaying that evidence, did not direct the jury not to give the complainant’s evidence undue weight, and did not repeat or summarise the appellant’s evidence – whether defence counsel had sought to obtain a forensic advantage by not requesting such a direction Evidence Act 1977 (Qld), s 93A Douglass v The Queen (2012) 86 ALJR 1086; [2012] HCA 34, cited Gately v The Queen (2007) 232 CLR 208; [2007] HCA 55, considered MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, applied R v CX [2006] QCA 409, cited R v DAL[2005] QCA 281, cited R v GAO[2012] QCA 54, discussed R v SBL[2009] QCA 130, cited TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, cited
COUNSEL:	P J Callaghan SC for the appellant D L Meredith for the respondent
SOLICITORS:	Bernard Bradley & Associates for the appellant Director of Public Prosecutions (Queensland) for the respondent