R v GAO - [2012] QCA 54

SUPREME COURT OF QUEENSLAND

CITATION:

R v GAO [2012] QCA 54

PARTIES:

R
v
GAO
(appellant)

FILE NO/S:

CA No 353 of 2011
DC No 165 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

Orders delivered ex tempore on 6 March 2012
Reasons delivered on 20 March 2012

DELIVERED AT:

Brisbane

HEARING DATE:

6 March 2012

JUDGES:

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

ORDERS:

Delivered ex tempore on 6 March 2012:
1. Leave granted to amend appellant’s outline.
2. Verdicts of guilty set aside.
3. Retrial is ordered on those counts.

CATCHWORDS:

APPEAL AND NEW TRIAL – NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS – IN GENERAL – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES INVOLVING MISCARRIAGE – MISDIRECTION – where appellant convicted on two counts of indecent treatment of a child under 16 years – where child under 12 years – where appellant sentenced on one count to nine months imprisonment suspended after four months and operational for 12 months, and sentenced to three months on the other count – where primary judge included s 93A interviews in exhibits with jury during deliberations, under s 99 discretion – where primary judge did not discuss this with counsel, and counsel did not object – where primary judge did not specifically remind the jurors of what emerged in the relevant cross-examinations to the s 93A interviews – where the primary judge did not warn the jury against the risk of giving the s 93A evidence disproportionate weight – whether the jury might therefore have given that evidence disproportionate 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
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: I agree with White JA.

WHITE JA: The appellant was convicted on 25 November 2011 in the District Court at Cairns on two counts of indecent treatment of a child under the age of 16 years with the additional circumstance that she was aged under 12 years. He was found not guilty of two further charges of indecent treatment of the same complainant. The misconduct was alleged to have occurred on 28 May 2010.

The appellant was sentenced on one count to imprisonment for nine months suspended after serving four months with an operational period of 12 months and to a lesser period of three months for the other count.

After hearing counsel’s submissions the Court determined to allow the appeal, making orders that the convictions be set aside and ordering a retrial with reasons to be delivered subsequently. The following are my reasons for…

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 GAO

Details

AGLC: R v GAO [2012] QCA 54
Case: [2012] QCA 54
Decision Date: 6 March 2012

CaseChat Overview and Summary

The case of R v GAO involved the appellant who was convicted on two counts of indecent treatment of a child under 16 years. The child was under 12 years of age at the time of the offence. The appellant was sentenced on one count to nine months imprisonment, suspended after serving four months and operational for 12 months, and on the other count, the sentence was three months imprisonment. The appellant appealed against his conviction and sentence, claiming a miscarriage of justice due to a series of procedural errors during the trial.

The primary legal issue before the court was whether the appellant's conviction should be quashed and a new trial ordered due to a series of errors in the trial process. The appellant's counsel argued that the primary judge misdirected the jury by including the s 93A interviews in the exhibits provided to the jury during their deliberations. The primary judge did not discuss this decision with counsel, and counsel did not object to the decision. Moreover, the primary judge did not specifically remind the jury of what emerged in the relevant cross-examinations to the s 93A interviews, and did not warn the jury against the risk of giving the s 93A evidence disproportionate weight. This raised the possibility that the jury may have given the s 93A evidence disproportionate weight, which could have led to a miscarriage of justice.

The court found that the primary judge's decision to include the s 93A interviews in the exhibits provided to the jury during their deliberations was an error. The court held that the primary judge should have specifically reminded the jury of what emerged in the relevant cross-examinations to the s 93A interviews and warned the jury against the risk of giving the s 93A evidence disproportionate weight. The court concluded that the appellant's conviction was unsafe and unsatisfactory, and that a miscarriage of justice had occurred. The court quashed the appellant's conviction and ordered a retrial on the two counts.

The court ordered that the appellant's convictions be set aside, and that a retrial be held on the two counts of indecent treatment of a child under 16 years. The court also granted leave to amend the appellant's outline. The court's decision highlights the importance of ensuring that juries are properly directed and warned when considering evidence obtained through s 93A interviews. The court's decision also underscores the need for trial judges to be mindful of the potential risks of misdirection when including such evidence in the exhibits provided to the jury during their deliberations.

Orders

Orders of the court

Delivered ex tempore on 6 March 2012:

1. Leave granted to amend appellant’s outline.

2. Verdicts of guilty set aside.

3. Retrial is ordered on those counts.

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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CITATION:	R v GAO [2012] QCA 54
PARTIES:	R v GAO (appellant)
FILE NO/S:	CA No 353 of 2011 DC No 165 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	Orders delivered ex tempore on 6 March 2012 Reasons delivered on 20 March 2012
DELIVERED AT:	Brisbane
HEARING DATE:	6 March 2012
JUDGES:	Fraser and White JJA, and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Delivered ex tempore on 6 March 2012: 1. Leave granted to amend appellant’s outline. 2. Verdicts of guilty set aside. 3. Retrial is ordered on those counts.
CATCHWORDS:	APPEAL AND NEW TRIAL – NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS – IN GENERAL – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES INVOLVING MISCARRIAGE – MISDIRECTION – where appellant convicted on two counts of indecent treatment of a child under 16 years – where child under 12 years – where appellant sentenced on one count to nine months imprisonment suspended after four months and operational for 12 months, and sentenced to three months on the other count – where primary judge included s 93A interviews in exhibits with jury during deliberations, under s 99 discretion – where primary judge did not discuss this with counsel, and counsel did not object – where primary judge did not specifically remind the jurors of what emerged in the relevant cross-examinations to the s 93A interviews – where the primary judge did not warn the jury against the risk of giving the s 93A evidence disproportionate weight – whether the jury might therefore have given that evidence disproportionate 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 Director of Public Prosecutions (Queensland) for the respondent