R v Hodges

Case [2018] QCA 92

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hodges [2018] QCA 92

PARTIES:

R
v
HODGES, Lisa Anne
(appellant)

FILE NO/S:

CA No 163 of 2017
DC No 1289 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 26 June 2017 (Moynihan QC DCJ)

DELIVERED ON:

22 May 2018

DELIVERED AT:

Brisbane

HEARING DATE:

1 May 2018

JUDGES:

Gotterson and Philippides JJA and Daubney J

ORDERS:

1.   The application for leave to adduce new evidence is refused.

2.   The appeal be dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – OTHER MATTERS – where the appellant was convicted of three counts of defrauding her employer of more than $500,000 – where the appellant conceded that the evidence at trial was sufficient to sustain the convictions – where the appellant appealed against convictions on the basis of a miscarriage of justice – where leave sought to adduce a clinical neuropsychologist report as new evidence – principles concerning an appeal on the basis of a miscarriage of justice where new evidence is sought to be relied upon – the nature of an appellate court’s jurisdiction to set aside a conviction and order a retrial

Lawless v The Queen (1979) 142 CLR 659; [1979] HCA 49, applied
R v HBR[2017] QCA 193, distinguished
R v Katsidis; ex parte Attorney-General (Qld)[2005] QCA 229, distinguished
R v Spina[2012] QCA 179, distinguished
Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35, applied

COUNSEL:

A M Hoare for the appellant
G P Cash QC for the respondent

SOLICITORS:

Fraser Power Solicitors for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. GOTTERSON JA:  I agree with the orders proposed by Philippides JA and with the reasons given by her Honour.

  2. PHILIPPIDES JA:  The appellant was convicted on 26 June 2017 by a jury of three counts of defrauding her employer, the complainant company, of a total of more than $500,000.  She was sentenced on 21 July 2017 to a head sentence of five years on one count and lesser concurrent terms on the other two counts.

  3. The appellant sought and was granted leave to amend ground 3 of the grounds of appeal.  The other grounds were abandoned.

  4. The appellant concedes that the evidence at trial was sufficient to sustain the convictions.  The appellant, however, seeks to have the convictions set aside and a retrial ordered on the basis that there was a miscarriage of justice by reason of certain evidence not having been given at trial.  The appellant was granted leave to tender a report by Dr Mariani, a clinical neuropsychologist, for the purposes of the consideration of the application to adduce further evidence.[1]

    [1]A report of a psychologist, Dr Palk, adduced on sentence, was also tendered.

  5. The respondent submitted that the appellant has not demonstrated that the report should be received as fresh evidence and…

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R v Hodges [2018] QCA 92
Case
[2018] QCA 92
Decision Date

CaseChat Overview and Summary

In the case of R v Hodges, the appellant appealed against her conviction for defrauding her employer of more than $500,000. The appellant conceded that the evidence at trial was sufficient to sustain the convictions but argued that a miscarriage of justice had occurred because new evidence was not presented at the trial. Specifically, the appellant sought leave to adduce a clinical neuropsychologist report to demonstrate that she had suffered from a transient ischemic attack on 28 October 2013, which could have affected her cognitive functioning and ability to effectively express her version of events to the jury.

The legal issues before the court were whether the appellant's proposed evidence demonstrated a miscarriage of justice and whether the court had the jurisdiction to set aside the conviction and order a retrial. The court considered the principles established in Ratten v The Queen and Lawless v The Queen, which provide that when evidence not called at trial, taken in conjunction with other evidence tendered at trial, shows the accused to be innocent or raises a reasonable doubt as to guilt, the conviction must be set aside outright. However, if the evidence sought to be adduced is new evidence (available or could have become available with reasonable diligence) and reveals no more than a likelihood that the jury would have returned a verdict of not guilty, it is not permissible for an appellate court to set aside a conviction.

The court found that the proposed new evidence, even if accepted without reservation, did not compel a conclusion that the verdicts of the jury were not reasonably open. While the evidence may have assisted the jury in understanding the nature of the appellant's impairments and her level of cognitive functioning, it could not provide a sound basis for determining the extent to which the appellant was actually impaired at the time of the trial. Therefore, the court refused the application for leave to adduce new evidence and dismissed the appeal.

The orders made by the court were that the application for leave to adduce new evidence was refused, and the appeal was dismissed. The judge agreed with the reasoning of the court and confirmed the orders.

Orders

Orders of the court

1. The application for leave to adduce new evidence is refused.

2. The appeal be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Evidence that the appellant suffered from a transient ischemic attack on 28 October 2013 was led to demonstrate that there was a reason for her leaving the business that was not related to fraud.Application to adduce further evidence In seeking leave to admit the report of Dr Mariani, a clinical neuropsychologist, the appellant conceded that the proposed evidence was new rather than fresh evidence. The appellant submitted that where, as was the case here, the appellant’s case was entirely dependent upon her testimony, evidence that would assist the jury in assessing her credit was critical. It was argued that, in the absence of that evidence, the deficiencies in the appellant’s evidence (and matters such as the taking of breaks in giving evidence) were left unexplained and must have impacted adversely upon her credibility. Because the jury did not have the benefit of Dr Mariani’s report, the jury engaged in assessing the appellant’s evidence and her credit “without the information of the cognitive deficiency” and were also “not made aware of the effect of the transient ischemic attacks upon the appellant’s ability to effectively express her version of events to the jury”. It was submitted that the case was one where a miscarriage of justice had been occasioned by the absence of the identified evidence being led that could only be remedied by an order for a retrial. The application sought that order rather than an acquittal because it was accepted that this was not a case where the proposed new evidence was such as would lead to an inevitable conclusion that the appellant would have been acquitted. The submission that a retrial should be ordered was made relying on the test enunciated in R v HBR,[2] by Mullins J (with whom the other members of the Court agreed), as to the Court’s residual discretion to admit new or fresh evidence, where it could be shown that there was “a significant possibility that a jury hearing the new evidence would have reached a different verdict”.[2][2017] QCA 193 at [83].Relevant principles In Ratten v The Queen[3] and Lawless v The Queen,[4] the High Court authoritatively stated the principles to be applied in dealing with an appeal against conviction on the ground that a miscarriage of justice occurred based on further evidence not given at trial. They are:1.Firstly, when the evidence not called at trial (whether or not it be fresh evidence in the strict sense of that expression), taken in conjunction with other evidence tendered at trial, shows the accused to be innocent or when it raises a reasonable doubt as to his guilt, the conviction must be set aside outright.[5]2.Secondly, in the case of fresh evidence only (being evidence of which the accused was unaware at the time of trial and which could not have been discovered with reasonable diligence), although innocence or reasonable doubt of guilt is not demonstrated, if it “shows that it is likely that a verdict of not guilty would have been returned by the jury had it had the benefit of the fresh evidence, the court should set aside the conviction and order a new trial”.[6]3.In both types of cases, the appropriate approach is to consider the proposed evidence in conjunction with the evidence tendered at the trial and whether it reveals a miscarriage of justice because it would be unsound or unsatisfactory to allow the conviction to stand.[7] The miscarriage of justice arises in the first type of case because the appellant should be acquitted. In the second type of case (which can only arise where the evidence sought to be adduced is fresh evidence) because “there is a likelihood that the accused would be acquitted on a re-trial based on the fresh evidence”.[8]4.Accordingly, in the case of proposed evidence that is new evidence (being such as was available or could with reasonable diligence have become available) which “reveals no more than a likelihood that the jury would have returned a verdict of not guilty”[9] and thus “falls short of establishing that the accused should not have been convicted”,[10] it is not permissible for an appellate court to set aside a conviction. There is no miscarriage of justice in an unimpeachable verdict of guilty being allowed to stand where the new evidence “leads to the conclusion that the jury could reasonably convict, though it appears to the appellate court that it would be unlikely to do so”,[11] the failure to adduce that evidence lying with the accused.[3](1974) 131 CLR 510.[4](1979) 142 CLR 659.[5]Ratten v The Queen (1974) 131 CLR 510 at 518 (emphasis added); Lawless v The Queen (1979) 142 CLR 659 at 674-675.[6]Lawless v The Queen (1979) 142 CLR 659 at 675 (emphasis added).[7]Lawless v The Queen (1979) 142 CLR 659 at 675.[8]Lawless v The Queen (1979) 142 CLR 659 at 675 (emphasis added).[9]Lawless v The Queen (1979) 142 CLR 659 at 675 (emphasis added).[10]Lawless v The Queen (1979) 142 CLR 659 at 676 (emphasis added).[11]Lawless v The Queen (1979) 142 CLR 659 at 676.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The formulation in HBR as to what is required to be demonstrated to show a miscarriage of justice where the proposed evidence is not fresh evidence is an erroneous statement of the residual jurisdiction to set aside a verdict irrespective of the type of further proposed evidence. The proper inquiry as to whether there was a miscarriage of justice in HBR (as is the case here) is whether the new evidence, when combined with the evidence at trial, shows the accused to be innocent or raises a reasonable doubt as to guilt. Given that the evidence sought to be adduced in HBR was new evidence, the error in that case was not detrimental to the appellant as the Court imposed the less onerous test as to whether there has been a miscarriage of justice, applicable only where the evidence sought to be adduced is fresh evidence.Consideration The question for consideration then is whether the proposed new evidence should be received on the basis that it demonstrates that the jury’s verdicts were not reasonably open when considered with the evidence at trial. As the respondent submitted, and the appellant conceded, even if the proposed evidence as contained in Dr Mariani’s report was accepted without reservation, it did not compel a conclusion that the verdicts of the jury were not reasonably open. At its highest, the evidence suggested that it may have assisted the jury to hear some evidence of the nature of the appellant’s impairments and her level of cognitive functioning. However, Dr Mariani frankly acknowledged in her report the impossibility of retrospectively determining the appellant’s cognitive functioning at trial. In that respect, the proposed evidence could only have provided very little assistance to the jury. The ultimate conclusion expressed by Dr Mariani was that, in her opinion, it was:[22]“… not possible to retrospectively determine with any degree of accuracy whether the [transient ischemic attacks] have affected [the appellant’s] ability to effectively participate in the trial.”[22]Report page 20. Significantly, Dr Mariani also opined that, even if the appellant’s presentation when interviewed in April 2018 was consistent with her state at the trial, it was no more than a matter that “may have” affected her ability to attend to information and recall questions.[23] There is simply no sound basis for determining the extent to which the appellant was actually impaired as at the date of the hearing. Taking the proposed evidence of Dr Mariani at its highest, it does not show that the verdicts of the jury were not reasonably open.[23]Report page 19.Orders The orders I would make are:1.The application for leave to adduce new evidence is refused.2.The appeal be dismissed. DAUBNEY J: I agree with Philippides JA.