SUPREME COURT OF QUEENSLAND
CITATION:
R v Hartfiel [2014] QCA 132
PARTIES:
R
v
HARTFIEL, Janelle Marie
(appellant)FILE NO/S:
CA No 9 of 2014
DC No 398 of 2011DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
District Court at Ipswich
DELIVERED ON:
6 June 2014
DELIVERED AT:
Brisbane
HEARING DATE:
3 June 2014
JUDGES:
Margaret McMurdo P and Muir JA and Dalton J
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDERS:
1. The appeal be allowed.
2. The guilty verdicts be set aside.
3. There be a retrial on counts 1, 2, 3, 4 and 6.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the appellant was convicted after a trial of three counts of forgery and three counts of uttering – where the appellant was found guilty on all counts except one count of forgery – where appellant contends that the primary judge erred in law in failing to direct the jury that no adverse inference could be drawn from the fact that the appellant did not give evidence – whether the primary judge erred in directing the jury in her summing up – whether the failure to direct the jury as alleged constituted a miscarriage of justice – whether s 668E(1A) of the Criminal Code (Qld) applies
Criminal Code 1899 (Qld), s 668E(1), s 668E(1A)
Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25, followed
Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, cited
R v Bevin[2008] QCA 310, applied
R v DAH (2004) 150 A Crim R 14; [2004] QCA 419, considered
R v GAJ[2011] QCA 141, considered
R v OGD (1997) 45 NSWLR 744, followed
R v Schneiders[2007] QCA 210, considered
Simic v The Queen (1980) 144 CLR 319; [1980] HCA 25, considered
Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65, consideredCOUNSEL:
A Edwards for the appellant
V A Loury for the respondentSOLICITORS:
Bosscher Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent
MARGARET McMURDO P: I agree with Muir JA that this appeal must be allowed, the guilty verdicts set aside and a retrial ordered on counts 1, 2, 3, 4 and 6.
The appellant contends that the trial judge erred in failing to direct the jury in terms to the effect of those set out by the plurality in Azzopardi v The Queen,[1] that no adverse inference could be drawn from the appellant's failure to give evidence.
[1](2001) 205 CLR 50, 70, [51]; Gaudron, Gummow, Kirby and Hayne JJ.
The appellant called but did not give evidence. The relevant portions of the primary judge's directions to the jury are set out in Muir JA's reasons.[2] Those directions correctly guided the jury as to…
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- R v Hartfiel [2014] QCA 132
- Case
- [2014] QCA 132
- Decision Date
CaseChat Overview and Summary
The court examined the primary judge's summing up and determined that there was a non-direction concerning the jury's consideration of the appellant's silence. The court acknowledged that while a trial judge is not obliged to direct the jury on every possible issue, the failure to direct on this particular matter was significant. The court held that the omission to instruct the jury that no adverse inference could be drawn from the appellant's silence was a material misdirection, which had the potential to impact the fairness of the trial. Consequently, the court concluded that the appellant's right to a fair trial was compromised, and this error constituted a miscarriage of justice.
Accordingly, the Queensland Court of Appeal allowed the appeal and set aside the guilty verdicts. The court ordered that there be a retrial on counts 1, 2, 3, 4, and 6, while affirming the acquittal on count 5. The court's decision was based on the significant misdirection identified in the primary judge's summing up, which warranted the setting aside of the convictions and the granting of a retrial to ensure the appellant's right to a fair trial was upheld.
Orders
Orders of the court
1. The appeal be allowed.
2. The guilty verdicts be set aside.
3. There be a retrial on counts 1, 2, 3, 4 and 6.
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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