SUPREME COURT OF QUEENSLAND
CITATION:
R v HCU [2025] QCA 59
PARTIES:
R
v
HCU
(appellant/applicant)FILE NO/S:
CA No 119 of 2024
DC No 291 of 2022DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction & Sentence
ORIGINATING COURT:
District Court at Ipswich – Date of Conviction: 30 May 2024 Date of Sentence: 31 May 2024 (Power KC DCJ)
DELIVERED ON:
2 May 2025
DELIVERED AT:
Brisbane
HEARING DATE:
6 February 2025
JUDGES:
Mullins P, Brown JA and Gotterson AJA
ORDERS:
1. Appeal dismissed.
2. Application for leave to appeal sentence refused.
3. A warrant issue for the arrest of the appellant which is to lie in the registry for five business days.
CATCHWORDS:
CRIMINAL LAW – PROCEDURE – JURIES – DISCHARGE AND EXCUSING FROM ATTENDANCE – where the appellant was convicted by majority verdicts after a trial of four counts of indecent treatment of a girl under 14 years and a directed verdict of not guilty was entered on two further counts of indecent treatment of a girl under 14 years – where the appellant contended that he was denied a fair trial because the primary court received prejudicial evidence that warranted the discharge of the jury – where the appellant’s counsel at trial sought the discharge of the jury – whether the trial judge erred in refusing to discharge the jury – where a direction was given – whether there was a miscarriage of justice having regard to the whole of the evidence
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was convicted by majority verdicts after a trial of four counts of indecent treatment of a girl under 14 years – where the appellant was sentenced to a three year head sentence suspended after 12 months and 285 days of pre-sentence custody was declared as time served on the sentence – where the appellant argued that the disparity with other “yardstick” cases indicates misapplication of principle by the sentencing judge – where the appellant contended that there were a number of mitigating circumstances which demonstrated that the sentence was excessive – whether the sentence imposed was manifestly excessive
Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, cited
R v B [2003] QCA 105, considered
R v Fraser [2001] QCA 187, cited
R v Goulding[1994] QCA 276, considered
R v Koller [2011] QCA 371, cited
R v Pham (2015) 256 CLR 550; [2015] HCA 39, cited
R v T[1996] QCA 45, considered
R v W[2000] QCA 321, considered
R v WBB[2015] QCA 152, considered
R v Wruck (2014) 239 A Crim R 111; [2014] QCA 39, consideredCOUNSEL:
S J Bain for the appellant
M A Green for the respondentSOLICITORS:
Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent
MULLINS P: I agree with…
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- AGLC
- R v Hcu [2025] QCA 59
- Case
- [2025] QCA 59
- Decision Date
CaseChat Overview and Summary
The court examined whether the trial judge erred in refusing to discharge the jury after receiving prejudicial evidence and whether the jury's direction mitigated any prejudice. The court referenced the principle that every case depends on its own facts and the nature of the evidence and circumstances. The court noted that the direction given by the trial judge was appropriate and likely mitigated any potential prejudice from the statements made by the complainant. The court held that the jury's deliberations and the direction given ensured that the appellant received a fair trial.
In relation to the sentence, the court assessed whether the sentence was manifestly excessive or inadequate. The court examined the disparity with other similar cases and the mitigating circumstances presented. The court found that the sentence imposed was appropriate and did not manifest an error in principle by the sentencing judge. The court dismissed the appeal and denied the application for leave to appeal the sentence.
The final orders were to dismiss the appeal, deny leave to appeal the sentence, and issue a warrant for the arrest of the appellant, which was to lie in the registry for five business days.
Orders
Orders of the court
1. Appeal dismissed.
2. Application for leave to appeal sentence refused.
3. A warrant issue for the arrest of the appellant which is to lie in the registry for five business days.
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
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Ratio Decidendi
Legal Principle Established
The respondent further contends that the direction given by his Honour, albeit some time after the summing up had finished, extinguished the possibility of any prejudice, particularly given the trial judge’s careful direction avoided reference to the first statement so as not to emphasise it to the jury when the words were removed from the transcript. The jury had deliberated then for a further day after the direction was given with the redacted transcript.Consideration of ground 1 In R v Koller[6] White JA (with whom Muir and Chesterman JJA agreed) considered an argument that a jury should have been discharged due to the admission of inadmissible and prejudicial evidence and in that regard stated at [25]:“In R v Weaver, expressly followed by the Court of Criminal Appeal in R v Waring (No 2), the English Court of Criminal Appeal, considering the discretion to discharge a jury after prejudicial evidence has inadvertently been admitted said:‘It follows, as has been repeated time and again, that every case depends on its own facts. It also, as has been said time and again, thus depends on the nature of what has been admitted into evidence, the circumstances in which it has been admitted and what, in the light of the circumstances of the case as a whole, is the correct course. It is very far from being the rule that in every case where something of this nature gets into evidence through inadvertence the jury must be discharged.’” (footnotes omitted)[6][2011] QCA 371. The question for this Court is whether the appellant has established that there has been a miscarriage of justice when consideration is given to the whole of the evidence. It is not an appeal against the exercise of the trial judge’s discretion not to discharge a jury.[7][7]R v Fraser [2001] QCA 187 at [37] White J referred to Maric v R (1978) 20 ALR 513. As the trial judge recognised the statements made by the complainant had a potential prejudicial effect. It is unlikely, however, that, even absent a specific direction being given to the jury, there would, as the appellant contends, have been an irresistible inference by the jury that the appellant had fled from this trial as a result of consciousness of guilt on the basis of the first statement made by the complainant, or indeed the second statement, for a number of reasons. The first statement was ambiguous. The second statement even more so. Consciousness of guilt is a complicated legal concept. The first statement did not, on any reasonable view, carry a necessary inference that he fled because of a guilty mind. It was a possibility at best. Given the reference to “from a trial” and the absence of reference to the trial for these offences, it was equally open for the jury to infer from the statement that the appellant had run from an entirely unrelated trial, or that he had run from the trial for reasons other than a guilty mind such as personal issues. In the context of the complainant’s evidence as a whole it was also equally possible that the jury would have paid the statement no or little regard and just treated it as a reactive, irrelevant statement by the complainant, even without the direction, given the disconnect between the statement and the questions being asked. Given the nature of the statement made, any potential prejudice was overcome by an appropriate direction to ensure the defendant had a fair trial, as was done in this case.