R v Hamade - [2011] QCA 152

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hamade [2011] QCA 152

PARTIES:

R
v
HAMADE, Said Ahmad
(appellant)

FILE NO/S:

CA No 213 of 2010
DC No 118 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Toowoomba

DELIVERED ON:

1 July 2011

DELIVERED AT:

Brisbane

HEARING DATE:

15 June 2011

JUDGES:

Margaret McMurdo P, Margaret Wilson AJA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal against conviction dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IRREGULARITIES IN RELATION TO JURY – OTHER CASES – where the appellant was convicted of maintaining a sexual relationship with a child, indecent treatment of a child under 16 years and one count of rape – where a police officer performing court duties communicated with a juror or jurors on one occasion during the judge's summing up – where the communication concerned the possibility of developing the police officer's romantic interest in a member or members of the jury – where the trial judge excluded the police officer from the court room and directed the jury to disregard the communication – whether the communication amounted to a miscarriage of justice because the guilty verdicts may be tainted by a reasonable apprehension of perceived bias on the part of a juror or jurors

Criminal Code 1899 (Qld), s 668E(1)

Jury Act 1995 (Qld), s 56

Candetti Constructions Pty Ltd v Fonteyn (2010) 108 SASR 429; [2010] SASCFC 63, cited
Cesan v The Queen (2008) 236 CLR 358; [2008] HCA 52, considered
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63, considered
Gately v The Queen (2007) 232 CLR 208; [2007] HCA 55, cited
R v Jackson and Le Gros [1995] 1 Qd R 547; [1994] QCA 46, considered
R v McCosker [2010] QCA 52, cited
R v Phillips [2009] 2 Qd R 263; [2009] QCA 57, considered
R v Szabo [2001] 2 Qd R 214; [2000] QCA 194, considered
Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30, considered

COUNSEL:

S L Kissick for the appellant
M J Copley SC for the respondent

SOLICITORS:

Hanna Legal for the appellant
Director of Public Prosecutions (Queensland) for the respondent

MARGARET McMURDO P: The appellant was convicted after a nine day jury trial in the Toowoomba District Court on 23 April 2010 of maintaining a sexual relationship with a child (count 1); indecent treatment of a child under 16 years (count 2); and one count of rape (count 3). He was acquitted of two counts of rape (counts 4 and 5) but convicted of the alternative count of unlawful carnal knowledge on count 4. He was not sentenced until 25 June 2010. He was granted an extension of time to appeal in November 2010. His sole ground of appeal is that the…

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 Hamade

Details

AGLC: R v Hamade [2011] QCA 152
Case: [2011] QCA 152
Decision Date: 1 July 2011

CaseChat Overview and Summary

In the case of R v Hamade, the appellant, who had been convicted of maintaining a sexual relationship with a child, indecent treatment of a child under 16 years, and one count of rape, appealed against his conviction. The appellant argued that a miscarriage of justice occurred due to an irregularity involving a police officer who performed court duties. During the summing up of the trial judge, the police officer communicated with one or more jurors, discussing the possibility of developing a romantic interest in a member or members of the jury. The trial judge promptly excluded the police officer from the courtroom and instructed the jury to disregard the communication. The appeal hinged on whether this incident amounted to a miscarriage of justice, potentially tainting the guilty verdicts with a reasonable apprehension of perceived bias.

The primary legal issues the court had to decide were whether the communication between the police officer and the juror constituted a miscarriage of justice and whether the guilty verdicts were compromised by a reasonable apprehension of perceived bias. The court considered the nature of the communication and whether it could reasonably be perceived as biased. Additionally, the court evaluated the trial judge's response to the irregularity, including the exclusion of the police officer and the direction given to the jury. The court needed to determine whether these actions sufficiently mitigated any potential prejudice to the appellant.

The court concluded that the communication between the police officer and the juror did not amount to a miscarriage of justice. The court found that the trial judge's prompt response, which included excluding the police officer and directing the jury to disregard the communication, effectively mitigated any potential prejudice. The court held that the appellant had not demonstrated that there was a reasonable apprehension of perceived bias that could have influenced the jury's verdicts. Consequently, the appeal against the conviction was dismissed. The court determined that the trial judge's actions were adequate to ensure the fairness of the trial and that the guilty verdicts were not tainted by any perceived bias.

Orders

Orders of the court

Appeal against conviction 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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CITATION:	R v Hamade [2011] QCA 152
PARTIES:	R v HAMADE, Said Ahmad (appellant)
FILE NO/S:	CA No 213 of 2010 DC No 118 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Toowoomba
DELIVERED ON:	1 July 2011
DELIVERED AT:	Brisbane
HEARING DATE:	15 June 2011
JUDGES:	Margaret McMurdo P, Margaret Wilson AJA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal against conviction dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IRREGULARITIES IN RELATION TO JURY – OTHER CASES – where the appellant was convicted of maintaining a sexual relationship with a child, indecent treatment of a child under 16 years and one count of rape – where a police officer performing court duties communicated with a juror or jurors on one occasion during the judge's summing up – where the communication concerned the possibility of developing the police officer's romantic interest in a member or members of the jury – where the trial judge excluded the police officer from the court room and directed the jury to disregard the communication – whether the communication amounted to a miscarriage of justice because the guilty verdicts may be tainted by a reasonable apprehension of perceived bias on the part of a juror or jurors Criminal Code 1899 (Qld), s 668E(1) Jury Act 1995 (Qld), s 56 Candetti Constructions Pty Ltd v Fonteyn (2010) 108 SASR 429; [2010] SASCFC 63, cited Cesan v The Queen (2008) 236 CLR 358; [2008] HCA 52, considered Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63, considered Gately v The Queen (2007) 232 CLR 208; [2007] HCA 55, cited R v Jackson and Le Gros [1995] 1 Qd R 547; [1994] QCA 46, considered R v McCosker [2010] QCA 52, cited R v Phillips [2009] 2 Qd R 263; [2009] QCA 57, considered R v Szabo [2001] 2 Qd R 214; [2000] QCA 194, considered Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30, considered
COUNSEL:	S L Kissick for the appellant M J Copley SC for the respondent
SOLICITORS:	Hanna Legal for the appellant Director of Public Prosecutions (Queensland) for the respondent