R v Hurlstone - [2023] QCA 15

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hurlstone [2023] QCA 15

PARTIES:

R
v
HURLSTONE, Victor
(appellant)

FILE NO/S:

CA No 53 of 2022
DC No 159 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Southport – Date of Conviction: 25 February 2022 (Jackson KC DCJ)

DELIVERED ON:

14 February 2023

DELIVERED AT:

Brisbane

HEARING DATE:

4 November 2022

JUDGES:

McMurdo and Dalton and Flanagan JJA

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the jury returned verdicts of guilty on two counts of assault, one count of grievous bodily harm and one count of rape but returned verdicts of acquittal on two separate counts of rape – whether the verdicts of acquittal were an affront to logic or commonsense – whether the verdicts of acquittal showed the jury was confused or had compromised – whether the difference between the verdicts of guilty and verdicts of acquittal had a rational basis in the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – JURY – NUMBER OF JURORS – where on day 5 of trial, one juror indicated she was in pain and could not continue – whether trial judge erred in discharging juror who became incapable of continuing

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where trial judge determined to proceed with 11 jurors after discharging 1 juror – whether miscarriage of justice occurred in proceeding with and taking a verdict from 11 jurors

Jury Act 1995 (Qld), s 33, s 67, s 57, s 59A

BG v The Queen (2012) 221 A Crim R 215; [2012] NSWCCA 139, distinguished
R v Blackmore[2016] QCA 181, cited
R v CX[2006] QCA 409, followed
R v Goodson [1975] 1 WLR 549, considered
R v Latimer [1990] OJ No 401, considered
Wu v The Queen (1999) 199 CLR 99; [1999] HCA 52, followed

COUNSEL:

K V Juhasz for the appellant
C W Wallis for the respondent

SOLICITORS:

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

McMURDO JA: I agree with Dalton JA.
DALTON JA: This is an appeal against one of four convictions entered after a jury trial. The appellant pleaded not guilty to an eight count indictment on the first day of his trial, 21 February 2022. The facts upon which the eight counts were based took place in a continuous course on 2 September 2016. They were acts of violence and sexual violence by the appellant upon his girlfriend.
The Crown case was that the complainant had been in a sexual relationship with the appellant for three or four months, and lived at his house. A week before the offending she had left his house and was staying with a neighbour across the road. On the evening of the offending he called out to her 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 Hurlstone

Details

AGLC: R v Hurlstone [2023] QCA 15
Case: [2023] QCA 15
Decision Date: 14 February 2023

CaseChat Overview and Summary

In the case of R v Hurlstone, the appellant sought to appeal his conviction on the basis of inconsistent verdicts and a potential miscarriage of justice during the jury trial. The jury returned verdicts of guilty on two counts of assault, one count of grievous bodily harm, and one count of rape, but acquitted the appellant on two separate counts of rape. The appellant argued that the acquittals were an affront to logic or commonsense and suggested that the jury was confused or had compromised. Additionally, the appellant claimed that the trial judge erred by discharging a juror who became incapable of continuing on the fifth day of the trial and that proceeding with 11 jurors constituted a miscarriage of justice.

The legal issues before the court involved the consistency of the jury's verdicts and the procedural correctness of the trial judge's decisions regarding the jury. The court needed to determine whether the acquittals on two counts of rape were rational given the evidence presented, and whether the trial judge properly exercised his discretion in discharging the juror and proceeding with an 11-person jury.

The court found that the jury's verdicts, while seemingly inconsistent, were not an affront to logic or commonsense. The court acknowledged that the jury was tasked with assessing the credibility of the evidence and the witnesses, and the differences in their verdicts reflected their assessment of the evidence. The court held that there was a rational basis in the evidence for the jury to acquit the appellant on two counts of rape while convicting him on other charges. Regarding the discharge of the juror, the court found that the trial judge had not erred in his decision to discharge the juror, as she had become incapable of continuing. The court also held that proceeding with an 11-person jury did not constitute a miscarriage of justice, as the trial judge had the discretion to do so in such circumstances.

Accordingly, the appeal was dismissed, and the convictions were upheld.

Orders

Orders of the court

Appeal dismissed.

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

Full text does not contain this section.

CITATION:	R v Hurlstone [2023] QCA 15
PARTIES:	R v HURLSTONE, Victor (appellant)
FILE NO/S:	CA No 53 of 2022 DC No 159 of 2022
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Southport – Date of Conviction: 25 February 2022 (Jackson KC DCJ)
DELIVERED ON:	14 February 2023
DELIVERED AT:	Brisbane
HEARING DATE:	4 November 2022
JUDGES:	McMurdo and Dalton and Flanagan JJA
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the jury returned verdicts of guilty on two counts of assault, one count of grievous bodily harm and one count of rape but returned verdicts of acquittal on two separate counts of rape – whether the verdicts of acquittal were an affront to logic or commonsense – whether the verdicts of acquittal showed the jury was confused or had compromised – whether the difference between the verdicts of guilty and verdicts of acquittal had a rational basis in the evidence CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – JURY – NUMBER OF JURORS – where on day 5 of trial, one juror indicated she was in pain and could not continue – whether trial judge erred in discharging juror who became incapable of continuing CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where trial judge determined to proceed with 11 jurors after discharging 1 juror – whether miscarriage of justice occurred in proceeding with and taking a verdict from 11 jurors Jury Act 1995 (Qld), s 33, s 67, s 57, s 59A BG v The Queen (2012) 221 A Crim R 215; [2012] NSWCCA 139, distinguished R v Blackmore[2016] QCA 181, cited R v CX[2006] QCA 409, followed R v Goodson [1975] 1 WLR 549, considered R v Latimer [1990] OJ No 401, considered Wu v The Queen (1999) 199 CLR 99; [1999] HCA 52, followed
COUNSEL:	K V Juhasz for the appellant C W Wallis for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent