R v Hartfiel - [2014] QCA 132

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 2011

DIVISION:

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 made

ORDERS:

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, considered

COUNSEL:

A Edwards for the appellant
V A Loury for the respondent

SOLICITORS:

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…

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 Hartfiel

Details

AGLC: R v Hartfiel [2014] QCA 132
Case: [2014] QCA 132
Decision Date: 6 June 2014

CaseChat Overview and Summary

In the matter of R v Hartfiel, the appellant was convicted in the District Court of Queensland on three counts of forgery and three counts of uttering. The appellant was acquitted on one count of forgery. The appellant appealed against the conviction on the basis that the primary judge failed to properly direct the jury, particularly in not advising them that no adverse inference could be drawn from the fact that the appellant did not give evidence. The Queensland Court of Appeal was tasked with determining whether the primary judge's direction to the jury was erroneous, and if so, whether such an error amounted to a miscarriage of justice warranting a retrial. The appeal hinged on whether section 668E(1A) of the Criminal Code (Qld) applied to permit the Court of Appeal to order a retrial.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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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 2011
DIVISION:	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 made
ORDERS:	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, considered
COUNSEL:	A Edwards for the appellant V A Loury for the respondent
SOLICITORS:	Bosscher Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent