R v GJL

Case [2021] QCA 175

SUPREME COURT OF QUEENSLAND

CITATION:

R v GJL [2021] QCA 175

PARTIES:

R
v
GJL
(appellant)

FILE NO/S:

CA No 191 of 2020
DC No 164 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 7 September 2020 (Dick SC DCJ)

DELIVERED ON:

24 August 2021

DELIVERED AT:

Brisbane

HEARING DATE:

23 April 2021

JUDGES:

Morrison and McMurdo JJA and Bradley J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant was charged with a number of sexual offences against his partner’s daughter – where the appellant was acquitted on five counts at an earlier trial – where the jury were unable to reach a verdict on the remaining twelve counts – where a retrial of the remaining twelve counts was by judge-alone sitting without a jury – where the appellant was convicted as a result of that trial on eight counts and acquitted on four counts – whether the learned trial judge erred in law in her treatment of the appellant’s prior acquittals – whether the learned trial judge failed to consider or give adequate reasons relating to certain evidence adduced at trial – whether there was a miscarriage of justice

Garrett v The Queen (1977) 139 CLR 437; [1977] HCA 67, cited
Gilham v The Queen (2012) 224 A Crim R 22; [2012] NSWCCA 131, cited
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, considered
R v Carroll (2002) 213 CLR 635; [2002] HCA 55, considered
R v Darby (1982) 148 CLR 668; [1982] HCA 32, cited
R v FAR[2018] QCA 317, distinguished
R v Storey (1978) 140 CLR 364; [1978] HCA 39, applied
Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42, considered
Washer v Western Australia (2007) 234 CLR 492; [2007] HCA 48, applied

COUNSEL:

S C Holt QC, with A J Kimmins and M J Longhurst, for the appellant
D Nardone for the respondent

SOLICITORS:

Mellick Smith & Associates for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. MORRISON JA:  The complainant (JMT) and her mother met the appellant in the latter part of 1992.  JMT was 12 years old at that time.  Her mother started a relationship with the appellant after meeting him through work.

  2. In early 1993, JMT and her mother moved in with the appellant at his house.

  3. JMT said that once they had moved in with the appellant “he began paying more attention to me”.  She described the attention as “tickling me, throwing me in the pool and just mucking around”.  She said: “sometimes in the pool he’d accidentally maybe touch my breast when he threw me” and “sometimes my bum”.

  4. JMT gave evidence that:

    (a)“sometimes after dinner we used to sit on the couch…

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Details
AGLC
R v GJL [2021] QCA 175
Case
[2021] QCA 175
Decision Date

CaseChat Overview and Summary

In this appeal, the appellant challenged his conviction on eight counts of sexual offences against his partner's daughter, stemming from events alleged to have occurred in 1993. The appellant had previously been acquitted on five counts at a trial by judge and jury, and the jury was unable to reach a verdict on twelve counts. A retrial on these twelve counts was held by a judge alone, at which the appellant was convicted on eight counts and acquitted on four counts. The appellant argued that the trial judge erred in law by not fully considering his prior acquittals and in not adequately addressing certain evidence presented at trial.

The legal issues before the court were whether the trial judge erred in her treatment of the appellant's prior acquittals and whether she failed to consider or give adequate reasons relating to certain evidence adduced at trial. The court had to determine if these errors amounted to a miscarriage of justice. The evidence in question related to acts the appellant had been acquitted of in the previous trial, which was adduced at the specific request of defence counsel. The Crown Prosecutor expressly stated that this evidence was not being led in support of the Crown case.

The court found that the trial judge properly considered the previous acquittals in her assessment of the evidence. She gave appropriate directions concerning the reception and assessment of evidence, including the Longman direction, which addresses the use of previous acquittals. The judge recognised the potential impact of the acquittals on the credibility of the complainant's evidence but did not allow them to undermine the overall reliability of her testimony. The court concluded that the trial judge's directions and reasons adequately addressed the evidence and the effect of the previous acquittals.

The appeal was dismissed, and the convictions were upheld. The court found no miscarriage of justice and no error in the trial judge's handling of the evidence or the prior acquittals.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Consideration of this ground commences with identifying how it was that the evidence relating to the offences of which the appellant had previously been acquitted came to be adduced, as that sets the framework within which the question of full benefit of the acquittals can be analysed.How evidence relating to previous charges was adduced During the opening of the prosecution case it became apparent that JMT was going to give evidence relating to the offences of which the appellant had previously been acquitted, and the charge the subject of a nolle prosequi:[8]“MR COKER: … Your Honour, that’s a fairly brief summary of the evidence you’ll hear from the complainant, focusing on the offending itself. She also, obviously, goes into a lot of the surrounding circumstances and events, and the timeframe as best she [can] recall when things occurred. I’ll just note at this point: your Honour is also going to hear in the course of the recording her testimony about a number of other allegations, which form the other charges on the indictment.HER HONOUR: Which have been dealt with, in one way or another.MR COKER: Yes, it – no. They’ve been left in, effectively, at the request of the defence. They’re not being led in support of the Crown case.HER HONOUR: No.”[8]AB 25 line 39 to AB 26 line 4. Three matters are important to note from that unchallenged statement. First, the defence requested that all the evidence relating to charges of which the appellant had been acquitted, be adduced at the trial. Secondly, the Crown Prosecutor expressly stated that such evidence was not being adduced in support of the Crown case. Thirdly, her Honour’s response revealed that she understood that that evidence was not being adduced in support of the Crown case. Thus there can be no suggestion that the impact of the previous acquittals sounded in a way relevant to the admissibility of the evidence as to those charged acts. That evidence was adduced at the specific request of defence counsel on the trial in question here. So much was conceded by Mr Holt QC:[9]“ … [the] evidence of the acts which underlay those acquittals or the allegations that underlay those acquittals was led in the trial before her Honour then a trial judge by agreement and indeed explicitly and overtly on the basis that they would provide a forensic advantage to the appellant on his appeal and an assessment of the matters which remained live.”[9]Appeal transcript T1-3 lines 16-20.Trial judge’s approach to previous acquittals The learned trial judge gave general directions of the standard kind, concerning the reception and assessment of evidence. The way in which the learned trial judge approached the assessment of evidence generally can be seen from the following directions her Honour acknowledged:(a)the issues that exist must be resolved by taking into account all of the evidence;[10](b)the evidence to be accepted and rejected may be based on a number of things, including what a witness had to say in the witness box, the manner in which the witness gave evidence, the general impression which he or she made when giving evidence, statements which a witness may have made at an earlier time, such as in a statement to the police or at the committal, and an assessment of other evidence;[11](c)it is for her Honour to decide whether she accepted the whole of what a witness said, or only part of it, or none of it; the fact that her Honour might not accept a portion of the evidence of a witness does not mean that she must necessarily reject the whole of that witness’s evidence; her Honour may accept parts of it if she thinks it is worthy of acceptance;[12](d)it is up to her Honour to decide whether she accepted particular evidence and if she did, what weight or significance it should have;[13] and(e)the defence urged her Honour to give herself a Longman direction, in part because of the previous acquittals; her Honour did so.[14][10]Reasons below [15].[11]Reasons below [16].[12]Reasons below [17].[13]Reasons below [18].[14]Reasons below [53]-[54].

Decision

Reasons for decision

This ground fails.Conclusion As both grounds of the appeal have failed, I propose the following order:1.Appeal dismissed. McMURDO JA: I agree that this appeal should be dismissed. However, my reasons for rejecting the first ground of appeal differ from those of Morrison JA. The appellant was first tried, in 2019, by a judge and jury on 17 counts of sexual offending against the same complainant. She was the daughter of his then partner. The offences were alleged to have taken place in 1993, when the complainant was 12 to 13 years old. The outcome of that trial was that the jury acquitted the appellant on five counts and were unable to reach a verdict on 12 counts. The appellant was re-tried, by a judge alone, on those 12 charges. He was convicted on eight of them, and acquitted on the remaining four. At the first trial, the complainant was examined and cross-examined via a video link. At the second trial, recordings of that testimony were tendered and constituted the entirety of her evidence. As a result, the evidence of the complainant at the second trial included her evidence of acts of the appellant which were the basis for the charges on which he had been acquitted. That evidence was included by the prosecutor at the request of defence counsel. In his opening address, the prosecutor told the trial judge that the evidence was not being led in support of the Crown case. The evident strategy of defence counsel was to provide a basis for an argument that, by reason of the acquittals, the judge would have to accept that the complainant had not told the truth about these events, thereby detracting from her credibility or reliability about the events which were the subject of the second trial. That was the way in which defence counsel sought to use the evidence, and the fact of the acquittals, in his closing address to the judge. Defence counsel did not suggest that the acquittals were probative of a fact in issue. Rather, the suggested relevance of the evidence was limited to the complainant’s credibility or reliability as a witness. Most importantly, the evidence of those 12 counts, if accepted by the judge, would not have put in question the correctness of the acquittals. The prosecutor’s response to that argument can be seen from this extract from his written submissions to the trial judge:“83. The defendant is entitled to the full benefit of the acquittals in relation to these charges. It is not submitted that they can or should be used in any way in support of the Crown case on the remaining charges.84.It does not follow however that the previous acquittals throw into question the complainant’s credibility and reliability to such an extent that the Court could not be satisfied beyond a reasonable doubt that the defendant is guilty of the remaining charges.85.Without devolving into speculation about why the defendant was acquitted of those charges, it can simply be observed that the jury would have received standard directions regarding the need to separately consider the charges. Clearly enough they did so, as evidenced by their acquittals on some charges and inability to reach a verdict on others.”

Ratio Decidendi

Legal Principle Established

For the Crown, Mr Nardone submitted that there was no error and no miscarriage of justice. The essential points he made were:(a)the learned trial judge correctly directed herself that each count was to be considered separately and any reasonable doubt concerning the truthfulness and reliability of JMT’s evidence in relation to one or more counts must be taken into account in assessing the truthfulness or reliability of her evidence generally;(b)both parties below had submitted that the fact of the previous acquittal were additional matters which may reasonably cause the trial judge, as the arbiter of fact, to doubt as to the acceptance of the evidence of JMT on the remaining counts; and the prosecutor emphasised that the appellant was entitled to the full benefit of the acquittals in relation to the charges the subject of the trial;(c)in her Honour’s reasons, the trial judge referred to R v FAR[6] and recognised that the fact of those acquittals were matters that may cause doubt; but R v FAR does not suggest that the existence of the previous acquittals is determinative;(d)in referring to MFA v The Queen[7] the trial judge was doing nothing more than reasoning why the existence of the earlier acquittals did not lead automatically to a conclusion that JMT could not be believed;(e)the reasons of the trial judge do not evidence any suggestion that the evidence of the facts surrounding the matters which resulted in an acquittal were used in such a way as to suggest that those facts had occurred; nothing in the reasons of the trial judge that suggest that a view of the facts inconsistent with the acquittals was taken by the trial judge; and(f)the discussion of the principles in the reasons of the trial judge fall into two categories: (i) discussion of the general principles of law which apply to all criminal prosecutions and (ii) discussion of additional principles “to which I must have regard”; this shows that the trial judge had regard to the acquittals in assessing the remainder of the evidence.[6][2018] QCA 317.[7]MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53.Consideration – Ground 1 Consideration of this ground commences with identifying how it was that the evidence relating to the offences of which the appellant had previously been acquitted came to be adduced, as that sets the framework within which the question of full benefit of the acquittals can be analysed.How evidence relating to previous charges was adduced During the opening of the prosecution case it became apparent that JMT was going to give evidence relating to the offences of which the appellant had previously been acquitted, and the charge the subject of a nolle prosequi:[8]“MR COKER: … Your Honour, that’s a fairly brief summary of the evidence you’ll hear from the complainant, focusing on the offending itself. She also, obviously, goes into a lot of the surrounding circumstances and events, and the timeframe as best she [can] recall when things occurred. I’ll just note at this point: your Honour is also going to hear in the course of the recording her testimony about a number of other allegations, which form the other charges on the indictment.HER HONOUR: Which have been dealt with, in one way or another.MR COKER: Yes, it – no. They’ve been left in, effectively, at the request of the defence. They’re not being led in support of the Crown case.HER HONOUR: No.”[8]AB 25 line 39 to AB 26 line 4.