R v Harris

Case [2025] QCA 58

SUPREME COURT OF QUEENSLAND

CITATION:

R v Harris [2025] QCA 58

PARTIES:

R
v
HARRIS, Richard John
(appellant)

FILE NO/S:

CA No 173 of 2024
DC No 26 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Hervey Bay – Date of Conviction: 29 July 2024 (Farr SC DCJ)

DELIVERED ON:

Date of Orders: 28 March 2025
Date of Publication of Reasons: 2 May 2025

DELIVERED AT:

Brisbane

HEARING DATE:

4 February 2025

JUDGES:

Boddice and Brown JJA and Williams J

ORDERS:

Date of Orders: 28 March 2025

1.   The appeal be allowed.

2.   The verdicts of guilty below be set aside.

3.   There be a new trial in respect of counts 1 and 2.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – JURIES – DISCHARGE AND EXCUSING FROM ATTENDANCE – INDIVIDUAL JURORS – where the appellant was convicted after trial before a jury of one count of rape and one count of sexual assault – where the jury had been deliberating for a day and a half – where the jury had indicated a deadlock – where the trial judge adjourned until Monday the following week – where, on that Monday, a juror informed the Court that they were unable to attend Court due to a family health crisis – where the trial judge discharged the juror pursuant to s 56 of the Jury Act 1995 (Qld) – where the trial continued with 11 jurors, rather than 12 – whether proper enquiries were undertaken to establish satisfaction of the relevant pre-condition under s 56 of the Jury Act – whether the trial judge erred in discharging the juror

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where the appellant was convicted after trial before a jury of one count of rape and one count of sexual assault – where the jury had indicated a deadlock – where the trial judge discharged an individual juror – where the trial continued with 11 jurors, rather than 12 – where the trial judge received a note from the jury enquiring as to what constitutes a majority verdict – where the trial judge proceeded to direct the jury as to the availability of a majority verdict – whether there had been satisfaction of the pre-condition that the jury was unlikely to reach a unanimous verdict under s 59A of the Jury Act 1995 (Qld) – whether a miscarriage of justice occurred by allowing for a majority verdict to be taken in those circumstances

Jury Act 1995 (Qld), s 56, s 59A

Black v The Queen (1993) 179 CLR 44; [1993] HCA 71, cited
R v McClintock [2010] 1 Qd R 354; [2009] QCA 175, cited

COUNSEL:

P J Wilson for the appellant
M A Green for the respondent

SOLICITORS:

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

  1. BODDICE JA:  On 29 July 2024, a…

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AGLC
R v Harris [2025] QCA 58
Case
[2025] QCA 58
Decision Date

CaseChat Overview and Summary

The case of R v Harris involved the appellant, who was convicted by a jury of one count of rape and one count of sexual assault. The jury had been deliberating for a day and a half when they indicated that they were deadlocked on the third count. The trial judge adjourned the matter until the following Monday. On that Monday, a juror informed the court that they were unable to attend due to a family health crisis. The trial judge discharged the juror under section 56 of the Jury Act 1995 (Qld), and the trial proceeded with 11 jurors instead of the usual 12. The appellant appealed the conviction on the grounds that the trial judge did not properly enquire whether the jury was unlikely to reach a unanimous verdict before discharging the juror, and that this constituted a miscarriage of justice.

The court had to decide whether the trial judge erred in discharging the juror without first ensuring the jury was unlikely to reach a unanimous verdict, and whether the trial judge erred in allowing a majority verdict to be taken without the pre-condition under section 59A of the Jury Act being satisfied. The court also had to determine whether the circumstances amounted to a miscarriage of justice.

The court found that the trial judge did not undertake the necessary enquiries to establish satisfaction of the pre-condition under section 56 of the Jury Act. The court also found that the trial judge erred in discharging the juror without first confirming that the jury was unlikely to reach a unanimous verdict. The court held that there had been a miscarriage of justice because the jury was allowed to take a majority verdict without the pre-condition being satisfied. The court set aside the guilty verdicts and ordered a new trial in respect of counts 1 and 2.

Orders

Orders of the court

Date of Orders: 28 March 2025

1. The appeal be allowed.

2. The verdicts of guilty below be set aside.

3. There be a new trial in respect of counts 1 and 2.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The Crown particularised the first count of rape (count 1), as penetration of the complainant’s vagina by the appellant, with his finger/s, without her consent. The sexual assault count (count 2), was particularised as the appellant touching the complainant on the breast/s, without her consent. The second count of rape (count 3), was particularised as penile intercourse by the appellant with the complainant, without her consent.Evidence The complainant gave evidence that she had met the appellant through work, about three years prior to the night in question. They would speak from time to time over the telephone and sometimes meet in person. For approximately two weeks they were regularly exchanging text messages. The complainant accepted there were flirting aspects to them, but said they had ceased prior to the night in question. The complainant said she attended the appellant’s house, at his request, on 8 July 2022. The appellant told her there was not going to be anyone else present. She arrived with a four-pack of alcohol. She was surprised to see other people at the house. None of them were known to her. During the evening she drank the alcohol she had brought with her. She also ate a brownie provided by the appellant. The complainant said later in the evening she was cold and decided to leave. The appellant insisted that as she had been drinking, she sleep at his house. He gave her two options: to sleep in his bedroom, or his daughter’s bedroom. The complainant said she did not feel comfortable sleeping in the daughter’s bedroom and decided to sleep in the appellant’s bedroom. The complainant said she went to bed well before the appellant, who remained socialising with the other people. She was wearing two pairs of pants and a tracksuit pair of pants that had been provided by the appellant. Sometime in the early hours of the morning, the appellant got into the bed. The complainant turned to face him. At that point, the appellant tried to kiss her. She pushed him away. She also turned to face away from him. The complainant said the appellant moved his body near to her and commenced touching her. She told him repeatedly to leave her alone. The appellant persisted with touching her, including trying to pull down her pants. She pushed his hand away numerous times. The appellant then put his hand into her pants and placed a finger into her vagina (count 1). At no point did she say she wanted him to do so. The complainant said the appellant continued to grab and grope parts of her body, including her left breast (count 2). She told him “up to 30 times in different ways”, that she did not want this to happen and continually tried to push his hand away. The complainant said she then felt the appellant’s body move and the appellant’s penis enter her vagina (count 3). She asked the appellant if he was wearing a condom. He replied, “No, but I can put one on if you want”. The complainant got up and pulled up her pants. The appellant asked her why she was putting her pants back on saying, “You should be taking them off”. The complainant told him she was going to leave. The appellant said he would make “a pinkie promise” not to touch her anymore.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

During the interview, police asked the appellant about the pretext telephone call between him and the complainant. The appellant said the conversation was “about last night and how [the complainant] felt uncomfortable”. He was a little bit shocked because he did not agree with how she said things had happened. He accepted that he had apologised to the complainant in that conversation. Using the word “sorry” was “just because we got frisky, like, or like playing around”. The appellant also accepted that he had sent a text message to the complainant that morning. He had said sorry in that text because he had never meant for anything to happen. The emoji he sent was not crying; it was “hot and heavy”.Jury deliberations The jury retired to consider their deliberations at lunch time on day three of the trial. The evidence had concluded on the afternoon of day two and addresses had taken place on the morning of day three. The jury were sent home at 4.30 pm and returned and commenced deliberating at 9.00 am on the morning of day four of the trial. That afternoon, the jury sent two notes to the trial judge. The first asked a question in relation to count 1. The second indicated that despite their best endeavours, they were unlikely to reach a unanimous decision in respect of count 3. After receiving submissions from counsel, the trial judge indicated that he would give redirections in full in relation to mistake of fact and in response to the note in respect of count 1. The trial judge continued, “Insofar as the second question is concerned, unlikely to reach a unanimous decision, it seems to me that a Black Direction would be appropriate at this stage”. However, the trial judge said that as they had been deliberating all day and it was a very long day, he would redirect the jury in respect of count 1 and ask if they would like to continue with the deliberations, indicating that there was another direction that he could give them in relation to count 3, but asked whether they would prefer to leave it until the following Monday morning. Consistent with that indication, the trial judge redirected the jury in respect of matters relevant to the note in respect of count 1 and said, in relation to the second note:“Now, in relation to your second note, which relates to count 3, there is a direction that I can give you but first, I wanted to ask you this question: you have been deliberating since 9 o’clock this morning, so you had an early start. I was not intending on letting you go until 4.30 this afternoon because that is an extremely long day to be deliberating and I know it is exhausting. So I was minded to end the day’s proceedings at 4 o’clock this afternoon but I wanted to ask you would you prefer to continue deliberating now until 4 o’clock, after I give a further direction, and you can go outside and discuss this amongst yourselves before you answer this, or alternatively, you may wish to – you can either keep deliberating until 4 o’clock if you wish to do so but if you do not wish to do so, I am just as happy to adjourn the proceedings for the day and we will come back on Monday morning, starting fresh again and I will give you, I think, then the direction that I can give you because it would be more appropriate to do it closer to the time that you are deliberating.So those are your two options but would you like to discuss it amongst yourselves? Take a few minutes to discuss it and let me know what you want do and I will do whatever you prefer. All right. All right. Well, if you go with the Bailiff to the jury room and let him know when you have [indistinct] what you are doing or what you would like to do.”[1][1]AB 81/25–45.