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R v Gately

R v Gately

Case [2010] QCA 166 2 July 2010

Appeal

Jurisdiction

Miscarriage of Justice

Bias

Legal Privilege

Admissibility of Evidence

Criminal Law

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Gately [2010] QCA 166

PARTIES:

R
v
GATELY, Darren James
(appellant)

FILE NO/S:

CA No 4 of 2010
SC No 612 of 2009
SC No 621 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Townsville

DELIVERED ON:

2 July 2010

DELIVERED AT:

Brisbane

HEARING DATE:

25 May 2010

JUDGES:

Holmes and Muir JJA and McMeekin J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IRREGULARITIES IN RELATION TO JURY – PARTIALITY – where appellant convicted of murdering his father – where, at the commencement of the trial and after receiving the general direction to deal with the matter dispassionately, juror communicated a concern to the trial judge – where juror’s grand-daughter had been killed by her boyfriend in the course of a domestic relationship – where juror had not had contact with her grand-daughter for some time – where primary case and her grand-daughter’s case dissimilar – whether a fair-minded and informed person might apprehend or suspect that bias existed – whether trial judge misapplied the Webb test – whether conclusion that test not met reasonably open to the trial judge

CRIMINAL LAW – MISCARRIAGE OF JUSTICE – DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE – APPLICATION OF PROVISO TO PARTICULAR CASES – where juror communicated a concern to the trial judge – where trial judge adjourned the court to meet with the juror in his chambers to ascertain the substance of the concern – where defence counsel had acceded to that procedure – where the procedure caused a momentary breach of s 617 of the Criminal Code 1899 (Qld) which mandates that “the trial must take place in the presence of the accused” – whether this breach amounts to such a serious departure from the essential requirements of the law that it goes to the “root of the proceedings” – whether a breach of s 617 precludes the application of the proviso

Criminal Code 1899 (Qld), s 590AB, s 617, s 688E

AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8, considered
Evans v The Queen (2007) 235 CLR 521; [2007] HCA 59, cited
Gazepis v Police (1997) 70 SASR 121; [1997] SASC 6813, considered
R v Bryer (1994) 75 A Crim R 456, cited
R v Bujora [2001] QCA 310, considered
R v Collie (2005) 91 SASR 339; [2005] SASC 148, considered
R v Cornwell [2009] QCA 294, cited
R v DAJ [2005] QCA 40, considered
R v East (2008) 190 A Crim R 225; [2008] QCA 144, considered
R v HAU [2009] QCA 165, considered
R v K; ex parte A-G(Qld) (2002) 132 A Crim R 108, [2002] QCA 260, considered
R v TQ (2007) 173 A Crim R…

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 Gately

Details

AGLC: R v Gately [2010] QCA 166
Case: [2010] QCA 166
Decision Date: 2 July 2010

CaseChat Overview and Summary

In the matter of R v Gately, the appellant was convicted of murdering his father. He appealed against the conviction, asserting that there were irregularities relating to the jury and a miscarriage of justice. The legal issues before the court were whether the trial judge misapplied the test from Webb v The Queen and whether the conclusion that the test was not met was reasonably open to the trial judge. Additionally, the court considered whether a momentary breach of s 617 of the Criminal Code 1899 (Qld), which mandates that “the trial must take place in the presence of the accused,” precluded the application of the proviso.

The court held that the conclusion that the test from Webb was not met was reasonably open to the trial judge. The court found that the concern raised by the juror did not reveal a suspicion of bias on the part of the juror. The court also held that the momentary breach of s 617 did not go to the root of the proceedings and did not preclude the application of the proviso. The court found that there was no substantial miscarriage of justice and dismissed the appeal.

The appeal was dismissed, and the conviction of the appellant was upheld. The court found that the trial judge's decision to adjourn the court to meet with the juror in his chambers to ascertain the substance of the concern was an appropriate response to the situation, and the procedure did not amount to a serious departure from the essential requirements of the law. The court also held that the momentary breach of s 617 did not go to the root of the proceedings and did not preclude the application of the proviso.

Orders

Orders of the court

Appeal dismissed

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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Citations

R v Gately [2010] QCA 166

Most Recent Citation

R v Peter; R v Anau; R v Ingui; R v Banu [2020] QCA 228

Cases Citing This Decision

R v Peter; R v Anau; R v Ingui; R v Banu [2020] QCA 228
Citation 1 (Para 7)

…in Webb has also been applied as the test for the discretionary power under s 56. R v Hamade (2011) 220 A Crim R 151 at [10]; R v Gately [2010] QCA 166 at [7]; R v Burgess [2014] QCA 290 at [18]. [60] Webb at 52. [61] Webb at 53.…

See all citing cases →

Cases Cited

R v Cornwell [2009] QCA 294
Citation 1 (Para 1)

…the application of the proviso, was applied in R v Cornwell .[29] [26][2009] QCA 165. [27]At [36]. [28](1994) 75 A Crim R 456 at 478. [29][2009] QCA 294.…
R v HAU [2009] QCA 165
Citation 2 (Para 1)

…a difference to the verdict, with an affirmative answer precluding the application of the proviso, was applied in R v Cornwell .[29] [26][2009] QCA 165. [27]At [36]. [28](1994) 75 A Crim R 456 at 478. [29][2009] QCA 294.…
R v East [2008] QCA 144
Citation 3 (Para 1)

…ress the case against him was “inconsistent with an essential aspect of the criminal trial”[25] and went beyond what was necessary. [23][2008] QCA 144. [24]At [76]. [25]At [77].…
AK v Western Australia [2008] HCA 8
Citation 4

…iso Criminal Code 1899 (Qld), s 590AB, s 617, s 688E AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8, considered Evans v The Queen (2007) 235 CLR 521; [2007] HCA 59, cited Gazepis v Police (1997) 70 SASR 121; [1997] SASC 6813, considered R v Bryer (1994) 75 A Crim R 456, cited R v Bujora [2001] QCA 310,…
Evans v The Queen [2007] HCA 59
Citation 5

…rn Australia (2008) 232 CLR 438; [2008] HCA 8, considered Evans v The Queen (2007) 235 CLR 521; [2007] HCA 59, cited Gazepis v Police (1997) 70 SASR 121; [1997] SASC 6813, considered R v Bryer (1994) 75 A Crim R 456, cited R v Bujora [2001] QCA 310, considered R v Collie (2005) 91 SASR 339; [2005] SASC 148, cons…
R v TQ [2007] QCA 255
Citation 6 (Para 1)

…617 in the appeal before her. Consequently she would have considered the application of the proviso, but for the other identified errors. [21][2007] QCA 255. [22]At [35].…
Weiss v The Queen [2005] HCA 81
Citation 7

…v The Queen (1994) 181 CLR 41; [1994] HCA 30, considered Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, cited Wilde v The Queen (1988) 164 CLR 365; [1988] HCA 6, applied COUNSEL: R East for the appellant M Cowen for the respondent SOLICITORS: Legal Aid Queensland for the appellant Director of Public Prose…
R v Collie [2005] SASC 148
Citation 8

…94) 75 A Crim R 456, cited R v Bujora [2001] QCA 310, considered R v Collie (2005) 91 SASR 339; [2005] SASC 148, considered R v Cornwell [2009] QCA 294, cited R v DAJ [2005] QCA 40, considered R v East (2008) 190 A Crim R 225; [2008] QCA 144, considered R v HAU [2009] QCA 165, considered R v K; ex parte A-G(Qld) (…
R v DAJ [2005] QCA 40
Citation 9

…llie (2005) 91 SASR 339; [2005] SASC 148, considered R v Cornwell [2009] QCA 294, cited R v DAJ [2005] QCA 40, considered R v East (2008) 190 A Crim R 225; [2008] QCA 144, considered R v HAU [2009] QCA 165, considered R v K; ex parte A-G(Qld) (2002) 132 A Crim R 108, [2002] QCA 260, considered R v TQ (2007) 173…
R v K; ex parte [2002] QCA 260
Citation 10

…considered R v HAU [2009] QCA 165, considered R v K; ex parte A-G(Qld) (2002) 132 A Crim R 108, [2002] QCA 260, considered R v TQ (2007) 173 A Crim R 385; [2007] QCA 255, considered Rabey v The Queen [1980] WAR 84, considered Thomas v The Queen (No 2) [1960] WAR 129, considered Webb v The Queen (1994) 181 CLR 41;…
R v Bujora [2001] QCA 310
Citation 11 (Para 1)

…t should be noted, however, that the appellant in that case was unrepresented and did not draw the Court’s attention to any relevant authority. [15][2001] QCA 310.…
Fleming v The Queen [1998] HCA 68
Citation 12

…[31](1998) 197 CLR 250.…
Webb v the Queen [1994] HCA 30
Citation 13

…idered Thomas v The Queen (No 2) [1960] WAR 129, considered Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30, considered Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, cited Wilde v The Queen (1988) 164 CLR 365; [1988] HCA 6, applied COUNSEL: R East for the appellant M Cowen for the respondent SOLICITORS:…
Wilde v the Queen [1988] HCA 6
Citation 14

…eiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, cited Wilde v The Queen (1988) 164 CLR 365; [1988] HCA 6, applied COUNSEL: R East for the appellant M Cowen for the respondent SOLICITORS: Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent…
Gazepis v Police [1997] SASC 6813
Citation 15

…Evans v The Queen (2007) 235 CLR 521; [2007] HCA 59, cited Gazepis v Police (1997) 70 SASR 121; [1997] SASC 6813, considered R v Bryer (1994) 75 A Crim R 456, cited R v Bujora [2001] QCA 310, considered R v Collie (2005) 91 SASR 339; [2005] SASC 148, considered R v Cornwell [2009] QCA 294, cited R v DAJ [2005] QCA…

Legislation Cited

Criminal Procedure Act 1986 (NSW)
1 mention
Criminal Procedure Act 2004 (WA)
1 mention
Jury Act 1995 (Qld)
1 mention (from Para 1)

CITATION:	R v Gately [2010] QCA 166
PARTIES:	R v GATELY, Darren James (appellant)
FILE NO/S:	CA No 4 of 2010 SC No 612 of 2009 SC No 621 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Townsville
DELIVERED ON:	2 July 2010
DELIVERED AT:	Brisbane
HEARING DATE:	25 May 2010
JUDGES:	Holmes and Muir JJA and McMeekin J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IRREGULARITIES IN RELATION TO JURY – PARTIALITY – where appellant convicted of murdering his father – where, at the commencement of the trial and after receiving the general direction to deal with the matter dispassionately, juror communicated a concern to the trial judge – where juror’s grand-daughter had been killed by her boyfriend in the course of a domestic relationship – where juror had not had contact with her grand-daughter for some time – where primary case and her grand-daughter’s case dissimilar – whether a fair-minded and informed person might apprehend or suspect that bias existed – whether trial judge misapplied the Webb test – whether conclusion that test not met reasonably open to the trial judge CRIMINAL LAW – MISCARRIAGE OF JUSTICE – DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE – APPLICATION OF PROVISO TO PARTICULAR CASES – where juror communicated a concern to the trial judge – where trial judge adjourned the court to meet with the juror in his chambers to ascertain the substance of the concern – where defence counsel had acceded to that procedure – where the procedure caused a momentary breach of s 617 of the Criminal Code 1899 (Qld) which mandates that “the trial must take place in the presence of the accused” – whether this breach amounts to such a serious departure from the essential requirements of the law that it goes to the “root of the proceedings” – whether a breach of s 617 precludes the application of the proviso Criminal Code 1899 (Qld), s 590AB, s 617, s 688E AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8, considered Evans v The Queen (2007) 235 CLR 521; [2007] HCA 59, cited Gazepis v Police (1997) 70 SASR 121; [1997] SASC 6813, considered R v Bryer (1994) 75 A Crim R 456, cited R v Bujora [2001] QCA 310, considered R v Collie (2005) 91 SASR 339; [2005] SASC 148, considered R v Cornwell [2009] QCA 294, cited R v DAJ [2005] QCA 40, considered R v East (2008) 190 A Crim R 225; [2008] QCA 144, considered R v HAU [2009] QCA 165, considered R v K; ex parte A-G(Qld) (2002) 132 A Crim R 108, [2002] QCA 260, considered R v TQ (2007) 173 A Crim R…