R v GAJ

Case [2011] QCA 141 25 May 2011

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SUPREME COURT OF QUEENSLAND

CITATION:

R v GAJ [2011] QCA 141

PARTIES:

R
v
GAJ
(appellant/applicant)

FILE NO/S:

CA No 277 of 2010
DC No 15 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

Orders delivered ex tempore 25 May 2011
Reasons delivered 24 June 2011

DELIVERED AT:

Brisbane

HEARING DATE:

25 May 2011

JUDGES:

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

ORDERS:

Orders delivered ex tempore on 25 May 2011:

1. Appeal allowed.
2. Convictions are set aside.

3. A retrial is ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL –PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of one count of sexual assault and two counts of rape – where the appellant argued the direction to the jury on the elements of the offence of rape were insufficient – where the appellant argued the directions to the jury on the need to scrutinise the evidence of the complainant with particular care were insufficient – whether the primary judge’s directions amounted to an error of law or gave rise to a miscarriage of justice

CRIMINAL LAW – EVIDENCE – COMMENT ON FAILURE TO GIVE EVIDENCE – GENERALLY – where the appellant did not give or call evidence – where the trial judge did not direct the jury on the effect of the appellant's exercise of his right to silence – whether the failure to direct the jury as to the appellant's right to silence amounted to a fundamental irregularly requiring the convictions to be set aside and a retrial ordered

Criminal Appeal Rules 1952 (NSW), r 4
Criminal Code 1899 (Qld), s 24, s 348, s 632, s 668E(1)

Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25, applied
R v Bevin [2008] QCA 310, cited
R v DAH (2004) 150 A Crim R 14; [2004] QCA 419, cited
R v Graham [2005] NSWCCA 127, distinguished
R v Macris (2004) 147 A Crim R 99; [2004] NSWCCA 261, considered
R v Richards (2002) 128 A Crim R 204; [2002] NSWCCA 38, distinguished
R v Wilson (2005) 62 NSWLR 346; [2005] NSWCCA 20, considered
Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, cited
Tully v The Queen (2006) 230 CLR 234; [2006] HCA 56, cited

COUNSEL:

C Morgan for the appellant/applicant
M Byrne SC for the respondent

SOLICITORS:

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

[1] MARGARET McMURDO P: On 25 May 2011, this Court allowed the appellant's appeal against conviction, set aside the convictions entered and ordered a re-trial. These are my reasons for those orders.

[2] The appellant was convicted after a trial in the Townsville District Court of one…

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 GAJ

Details

AGLC: R v GAJ [2011] QCA 141
Case: [2011] QCA 141
Decision Date: 25 May 2011

CaseChat Overview and Summary

The case of R v GAJ involved an appeal by the appellant, who was convicted of one count of sexual assault and two counts of rape. The appellant argued that the trial judge had provided insufficient directions to the jury on the elements of the offence of rape and on the need to scrutinise the evidence of the complainant with particular care. The appellant also contended that the trial judge did not properly direct the jury on the effect of the appellant's right to silence, which was a fundamental irregularity. The court was required to determine whether these alleged errors amounted to a miscarriage of justice and whether the convictions should be set aside and a retrial ordered.

The legal issues before the court involved the sufficiency of the trial judge's directions to the jury and the effect of any errors in those directions. The court had to consider whether the directions given were sufficient to ensure that the jury properly understood the elements of the offences and the need to approach the evidence of the complainant with particular care. The court also needed to determine whether the failure to direct the jury on the effect of the appellant's right to silence constituted a fundamental irregularity that required the convictions to be set aside and a retrial ordered.

The court found that the trial judge's directions to the jury on the elements of the offence of rape were insufficient and that the directions on the need to scrutinise the evidence of the complainant with particular care were also inadequate. The court held that these errors amounted to a miscarriage of justice. The court also found that the failure to direct the jury on the effect of the appellant's right to silence was a fundamental irregularity that required the convictions to be set aside and a retrial ordered. The court concluded that the errors in the directions given to the jury were such that they materially affected the fairness of the trial.

The court allowed the appeal, set aside the convictions, and ordered a retrial. These orders were delivered ex tempore on 25 May 2011. The court found that the errors in the trial judge's directions to the jury were significant enough to warrant setting aside the convictions and ordering a retrial to ensure a fair trial for the appellant.

Orders

Orders of the court

Orders delivered ex tempore on 25 May 2011:

1. Appeal allowed.

2. Convictions are set aside.

3. A retrial is ordered.

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 GAJ [2011] QCA 141

Most Recent Citation

R v Hartfiel [2014] QCA 132

Cases citing this decision · 3 of 3 shown

R v Smallwood
[2021] QCA 132 Para 16

…secution case or supply additional proof against an accused. [2]For example, see R v DAH [2004] QCA 419, R v Bevin [2008] QCA 310 and R v GAJ [2011] QCA 141. [3][2014] QCA 132 at [27]. [4][2004] QCA 419.…
R v SDE
[2018] QCA 286 Para 17

…205 CLR 50 at [51]. [85] R v Hartfiel [2014] QCA 132 at [3] (Margaret McMurdo P) and [48] (Muir JA, with whom Dalton J agreed), following R v GAJ [2011] QCA 141 at [42]. [86]Summing up: ARB 226.…
R v Hartfiel
[2014] QCA 132 Para 1

…[4] Despite the strengths in the prosecution case, the proviso in s 668E(1A) Criminal Code 1899 (Qld) cannot be invoked. [2]At [30]-[32]. [3] R v GAJ [2011] QCA 141, [42]. [4] R v Schneiders [2007] QCA 210, [31].…

View all 3 citing cases →

Cases cited in this decision · 11 of 11 shown

R v Bevin
[2008] QCA 310 Para 1

…egularity in a trial requiring appellate courts to set aside resulting convictions and order a retrial. [6](2004) 150 A Crim R 14; [2004] QCA 419. [7][2008] QCA 310. [8]At 28A.1.…
Tully v The Queen
[2006] HCA 56

…Wilson (2005) 62 NSWLR 346; [2005] NSWCCA 20, considered Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, cited Tully v The Queen (2006) 230 CLR 234; [2006] HCA 56, cited COUNSEL: C Morgan for the appellant/applicant M Byrne SC for the respondent SOLICITORS: Legal Aid Queensland for the appellant/applicant Director…
R v Wilson
[2005] NSWCCA 219 Para 1

…decision in DAH . There is no reason to doubt the correctness of this Court's decision in Bevin . [16](2001) 205 CLR 50, [51]; [2001] HCA 25. [17]See R v Wilson (2005) 62 NSWLR 346; [2005] NSWCCA 20.…
R v Graham
[2005] NSWCCA 127 Para 1

…al decision in R v Macris [13] which has since been overturned in R v Wilson :[14] see Graham .[15] [9](2002) 128 A Crim R 204; [2002] NSWCCA 38. [10][2005] NSWCCA 127. [11] Richards (2002) 128 A Crim R 204, 211 [31]-[32]; Graham [2005] NSWCCA 127, [25]. [12] Richards (2002) 128 A Crim R 204, 208-209; Graham [2005]…
R v Wilson
[2005] NSWCCA 20 Para 1

…2] Richards (2002) 128 A Crim R 204, 208-209; Graham [2005] NSWCCA 127, [26]. [13](2004) 147 A Crim R 99; [2004] NSWCCA 261. [14](2005) 62 NSWLR 346; [2005] NSWCCA 20. [15][2005] NSWCCA 127, [21].…
R v DAH
[2004] QCA 419 Para 1

…s a fundamental irregularity in a trial requiring appellate courts to set aside resulting convictions and order a retrial. [6](2004) 150 A Crim R 14; [2004] QCA 419. [7][2008] QCA 310. [8]At 28A.1.…
R v Macris
[2004] NSWCCA 261 Para 1

…31]-[32]; Graham [2005] NSWCCA 127, [25]. [12] Richards (2002) 128 A Crim R 204, 208-209; Graham [2005] NSWCCA 127, [26]. [13](2004) 147 A Crim R 99; [2004] NSWCCA 261. [14](2005) 62 NSWLR 346; [2005] NSWCCA 20. [15][2005] NSWCCA 127, [21].…
R v Richards
[2002] NSWCCA 38 Para 1

…Court of Criminal Appeal decision in R v Macris [13] which has since been overturned in R v Wilson :[14] see Graham .[15] [9](2002) 128 A Crim R 204; [2002] NSWCCA 38. [10][2005] NSWCCA 127. [11] Richards (2002) 128 A Crim R 204, 211 [31]-[32]; Graham [2005] NSWCCA 127, [25]. [12] Richards (2002) 128 A Crim R 204,…
Azzopardi v the Queen
[2001] HCA 25

…ide and a retrial ordered Criminal Appeal Rules 1952 (NSW), r 4 Criminal Code 1899 (Qld), s 24, s 348, s 632, s 668E(1) Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25, applied R v Bevin [2008] QCA 310, cited R v DAH (2004) 150 A Crim R 14; [2004] QCA 419, cited R v Graham [2005] NSWCCA 127, distinguished R v Macris (20…
Robinson v The Queen
[1999] HCA 42

…38, distinguished R v Wilson (2005) 62 NSWLR 346; [2005] NSWCCA 20, considered Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, cited Tully v The Queen (2006) 230 CLR 234; [2006] HCA 56, cited COUNSEL: C Morgan for the appellant/applicant M Byrne SC for the respondent SOLICITORS: Legal Aid Queensland for…
[1992] HCA 42
[1992] HCA 42 Para 1

…hould act on her evidence only if, after considering the warning, they were convinced of its truthfulness and reliability. [1](1999) 197 CLR 162; [1992] HCA 42; and s 632(3) Criminal Code .…

Legislation cited in this decision · 1

Criminal Appeal Rules 1952 (NSW)
4 2 mentions (from Para 1)

CITATION:	R v GAJ [2011] QCA 141
PARTIES:	R v GAJ (appellant/applicant)
FILE NO/S:	CA No 277 of 2010 DC No 15 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	Orders delivered ex tempore 25 May 2011 Reasons delivered 24 June 2011
DELIVERED AT:	Brisbane
HEARING DATE:	25 May 2011
JUDGES:	Margaret McMurdo P, Fraser JA and Jones J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Orders delivered ex tempore on 25 May 2011: 1. Appeal allowed. 2. Convictions are set aside. 3. A retrial is ordered.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL –PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of one count of sexual assault and two counts of rape – where the appellant argued the direction to the jury on the elements of the offence of rape were insufficient – where the appellant argued the directions to the jury on the need to scrutinise the evidence of the complainant with particular care were insufficient – whether the primary judge’s directions amounted to an error of law or gave rise to a miscarriage of justice CRIMINAL LAW – EVIDENCE – COMMENT ON FAILURE TO GIVE EVIDENCE – GENERALLY – where the appellant did not give or call evidence – where the trial judge did not direct the jury on the effect of the appellant's exercise of his right to silence – whether the failure to direct the jury as to the appellant's right to silence amounted to a fundamental irregularly requiring the convictions to be set aside and a retrial ordered Criminal Appeal Rules 1952 (NSW), r 4 Criminal Code 1899 (Qld), s 24, s 348, s 632, s 668E(1) Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25, applied R v Bevin [2008] QCA 310, cited R v DAH (2004) 150 A Crim R 14; [2004] QCA 419, cited R v Graham [2005] NSWCCA 127, distinguished R v Macris (2004) 147 A Crim R 99; [2004] NSWCCA 261, considered R v Richards (2002) 128 A Crim R 204; [2002] NSWCCA 38, distinguished R v Wilson (2005) 62 NSWLR 346; [2005] NSWCCA 20, considered Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, cited Tully v The Queen (2006) 230 CLR 234; [2006] HCA 56, cited
COUNSEL:	C Morgan for the appellant/applicant M Byrne SC for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant/applicant Director of Public Prosecutions (Queensland) for the respondent