R v HCF

Case [2021] QCA 189

SUPREME COURT OF QUEENSLAND

CITATION:

R v HCF [2021] QCA 189

PARTIES:

R
v
HCF
(appellant/applicant)

FILE NO/S:

CA No 253 of 2020
DC No 4 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Hervey Bay – Date of Conviction: 20 October 2020; Date of Sentence: 22 October 2020 (Reid DCJ)

DELIVERED ON:

3 September 2021

DELIVERED AT:

Brisbane

HEARING DATE:

16 August 2021

JUDGES:

Morrison and Mullins JJA and North J

ORDERS:

1.   Appeal against conviction dismissed.

2.   Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE – GENERAL PRINCIPLES – where the appellant was convicted after a trial of one count of maintaining a sexual relationship with a child with circumstances of aggravation, four counts of indecent dealing with a child under 16, and one count of unlawful carnal knowledge – where a juror disclosed to other members of the jury that he had conducted his own research – where a juror disclosed to other members of the jury a bias – where the learned trial judge authorised the Sheriff of Queensland undertake an investigation pursuant to s 70(7) of the Jury Act 1995 (Qld) – whether there was a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was convicted after a trial of six sexual offences – where the appellant was sentenced to nine years’ imprisonment for maintaining a sexual relationship with a child with circumstances of aggravation with sentences for the remaining sexual offence sentences to be served concurrently – whether the sentence was manifestly excessive

Jury Act 1995 (Qld), s 70(7)

R v CBQ[2016] QCA 125, considered
R v F[2001] QCA 137, considered
R v Hall [1971] VR 293; [1971] VicRp 35, distinguished
R v KJB[2002] QCA 448, considered
R v Panozzo (2003) 8 VR 548; [2003] VSCA 184, considered
R v Peter; R v Anau; R v Ingui; R v Banu (2020); 286 A Crim R 372[2020] QCA 228, considered
R v SAG (2004) 147 A Crim R 301; [2004] QCA 286, cited
R v SAU[2006] QCA 192, considered
Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30, followed

COUNSEL:

S A Lynch for the appellant/applicant
D L Meredith for the respondent

SOLICITORS:

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

  1. MORRISON JA:  The appellant was charged with 25 sexual offences, committed in respect of two complainants.  His trial commenced on 13 October 2020.

  2. At the conclusion of the Crown case, the learned trial judge directed acquittals on six charges.[1]  Of the remaining 19 charges, the appellant was convicted on six and acquitted on 13.

    [1]Counts 8, 10, 11, 12, 13 and…

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Details
AGLC
R v HCF [2021] QCA 189
Case
[2021] QCA 189
Decision Date

CaseChat Overview and Summary

The appellant in the case of R v HCF was convicted of one count of maintaining a sexual relationship with a child with circumstances of aggravation, four counts of indecent dealing with a child under 16, and one count of unlawful carnal knowledge. The appellant sought to appeal against his conviction on the grounds of a potential miscarriage of justice. The appeal was grounded on the basis that a juror (Juror X) had disclosed his own past experiences and conducted internet research related to the trial, which may have influenced the jury's deliberations. This conduct was brought to light through a letter from another juror (Juror Y) handed to the Registrar. The trial judge ordered an investigation into the conduct of Juror X under section 70(7) of the Jury Act 1995 (Qld).

The primary legal issues for the court were whether the conduct of Juror X constituted a substantial miscarriage of justice and whether the appellant's sentence was manifestly excessive. The court needed to determine if the irregularities in the jury process were significant enough to warrant a new trial and if the sentence imposed was disproportionate to the crimes committed. The court examined the impact of Juror X's actions on the trial process and whether these actions led to an unfair trial. Additionally, the court assessed the sentence to ensure it was neither excessively harsh nor inadequately lenient, considering the nature and severity of the crimes.

The court concluded that Juror X's conduct, including his disclosure of past experiences and alleged internet research, did not result in a substantial miscarriage of justice. The findings of the investigation revealed that Juror X had indeed disclosed his bias and potentially conducted research, which was contrary to the trial judge's directions. However, the court found that the other jurors continued to deliberate and reach a verdict, and the overall integrity of the trial process was not compromised to the extent that a new trial was necessary. Furthermore, the court found that the sentence imposed on the appellant was not manifestly excessive, taking into account the nature of the offences and the need for appropriate punishment and deterrence.

In light of the findings, the court dismissed the appeal against the conviction and denied the application for leave to appeal against the sentence. The court confirmed that the jury's verdicts were legally valid and that the sentence was proportionate to the crimes committed. The court's final orders were to dismiss the appeal against conviction and to refuse the application for leave to appeal against the sentence.

Orders

Orders of the court

1. Appeal against conviction dismissed.

2. Application for leave to appeal against sentence refused.

Background

Background to the litigation

The appellant also seeks leave to appeal against his sentence, contending that it was manifestly excessive.Background to the trial The trial commenced on 13 October 2020, and evidence finished the following day. Because of delays with the transcripts the Court did not sit the following day, 15 October. On the morning of Friday, 16 October 2020, the Crown closed its case. At that point two reserve jurors who had been empanelled were discharged. After legal argument the learned trial judge directed acquittals in respect of six counts. The jury retired later that day. The following Monday, 19 October 2020, the jury continued to deliberate, in the course of which they sent four notes to the learned trial judge. The following day, 20 October 2020, they sent a further note and then returned with a verdict in the afternoon. Sentence was then adjourned to a later date. On the day after the verdicts were delivered, a juror (Juror Y) hand delivered a letter to the Registrar. The letter read:“Issue for the Judge – Jury Issue – (Keep or throw away)1.At the beginning of the trial – one juror adamantly stated that he would not convict, as he had a legal dealing regarding his interactions with a 13 yr. old child when he was young. He openly and honestly disclosed that to us.2.On Monday this week, during deliberations, he discussed some willingness to a verdict of carnal knowledge – AND that this was based on his internet research on the weekend – w.r.t lighter sentencing for such.3.After he and others realized from their discussions sentencing was not significantly different – he restated his absolute opposition to either.4.Based on a jury polling, his vote would not alter the ability to obtain a unanimous decision – but both his background & his external actions gives me concern.” The letter caused the learned trial judge to conclude that there were grounds to suspect that the juror (Juror X) may have been guilty of bias or an offence related to his membership of the jury, or the performance of his functions as a member of the jury. Before delivering the reasons for that conclusion his Honour gave a copy of the letter to the parties. As a consequence of the finding referred to above the learned trial judge authorised the Sheriff of Queensland to carry out an investigation into those questions. The investigation ordered by the learned trial judge was pursuant to s 70(7) of the Jury Act 1995 (Qld). It relevantly provides:“(7)If there are grounds to suspect that a person may have been guilty of bias … or an offence related to the person’s membership of a jury or the performance of functions as a member of a jury, the court before which the trial was conducted may authorise—(a)an investigation of the suspected bias … or offence;…” The learned trial judge considered whether it was appropriate to continue with the sentencing of the appellant pending the completion of the report. Ultimately he concluded that he should do so given that the jury’s verdicts still had legal efficacy and were appropriately taken.Directions at the commencement of the trial

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MFI J (dissent)
In my view, it has not been demonstrated that the sentence imposed was manifestly excessive. That application should be refused.Conclusion For the reasons given above I would propose the following orders:1.Appeal against conviction dismissed.2.Application for leave to appeal against sentence refused. MULLINS JA: I agree with Morrison JA. NORTH J: I agree with Morrison JA.

Ratio Decidendi

Legal Principle Established

Established by:

Further, even if there was an irregularity then the proviso in s 668E(1A) of the Criminal Code was applicable, as there had been no miscarriage of justice, either substantial or otherwise.Consideration There can be little doubt that the conduct of Juror X displayed a bias based upon his own personal previous experience and if it were true that he had conducted internet research connected with the sentences for rape and carnal knowledge, he acted contrary to the directions of the learned trial judge and contrary to the oath or affirmation he took as a juror. The responses by other jurors (including Juror Y) supported what was said in the letter. That is, at the beginning of the trial Juror X stated he would not convict based on his personal experiences in the past. The findings in this respect in the report were that Juror X announced that position to the other jurors early in the trial, causing at least some of the jurors[9] to believe that Juror X had demonstrated a bias in that he was unable to impartially consider the facts of the matter before the Court. The responses varied as to whether the bias was maintained during the course of deliberations.[9]Bearing in mind that only six of the 14 jurors responded to the Sheriff’s inquiries. It is also plain from the Sheriff’s report that members of the jury believed Juror X had conducted internet searches concerning the penalties for rape and unlawful carnal knowledge. That belief was obviously based upon what Juror X said to them in the course of deliberations. Juror X also led the jurors to believe that he had a disposition in relation to convicting which was affected by his view that unlawful carnal knowledge would attract a lesser penalty. The report did not make a finding as to whether Juror X had actually conducted the internet searches to which he referred. However, there can be no doubt that if Juror X conducted those internet searches it was against the express and very clear directions by the learned trial judge. It is important to note that this case involves Juror X revealing to other members of the jury that he had (apparently) conducted internet research connected with the trial. As the report found, other members of the jury believed that he had done so. Those other members of the jury were well aware of the clear directions of the learned trial judge that a juror should not do so, but more to the point that if they became aware that another juror had done so, they were to raise it with the trial judge. The letter which first raised any issue concerning Juror X was given to the trial judge after the verdicts were entered. Plainly, the jury continued deliberations with Juror X after forming the belief that he had carried out impermissible internet research. Not only were other members of the jury of the belief that he had conducted that research, at least some of them gave responses to the Sheriff which indicated that the fact of the internet research and its ramifications had been the matter of debate within the jury’s deliberations.