R v Hyde - [2020] QCA 196

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hyde [2020] QCA 196

PARTIES:

R
v
HYDE, Allan Charles
(appellant)

FILE NO/S:

CA No 293 of 2018
DC No 2500 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 5 November 2018 (Devereaux SC DCJ)

DELIVERED ON:

11 September 2020

DELIVERED AT:

Brisbane

HEARING DATE:

15 April 2020

JUDGES:

Sofronoff P and McMurdo and Mullins JJA

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – CONTROL OF PROCEEDINGS – ADJOURNMENT – GENERALLY – where the appellant was convicted of 10 counts of sexual offending against two children – where, shortly before the trial, the prosecution disclosed that the complainants’ father had been recently charged with using the internet to attempt to procure a child under 16 years to engage in a sexual act – where the appellant applied for an adjournment of the trial, which was refused by the trial judge – whether a miscarriage of justice thereby resulted

CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – OTHER CASES – where the appellant submits that the possibility that the complainants’ father was the offender was not properly put to the jury – whether a miscarriage of justice thereby resulted

CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – where the appellant submits that although the trial judge directed the jury according to Longman v The Queen and Robinson v The Queen to an extent, there were crucial aspects of the required directions which were missing – whether it was necessary for the judge to make specific comments about certain aspects of the evidence – whether the directions given were deficient

Crampton v The Queen (2000) 206 CLR 161; [2000] HCA 60, cited
Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, considered
R v GW (2016) 258 CLR 108; [2016] HCA 6, cited
Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, considered

COUNSEL:

E P Mac Giolla Ri, with R C Taylor, for the appellant
D Balic for the respondent

SOLICITORS:

Richard Gray & Associates for the appellant
Director of Public Prosecutions (Queensland) for the respondent

SOFRONOFF P: I agree with McMurdo JA.
McMURDO JA: The appellant was tried by a jury in the District Court on 11 charges of sexual offending against two children. The complainants were sisters and I shall refer to them as A and C. A was born in July 1992. C was born in March 1991. The offences were alleged to have been committed at various times between the beginning of 2000 and January 2004. The appellant was alleged to have maintained an unlawful sexual relationship with each child in the course of which she was raped and,…

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 Hyde

Details

AGLC: R v Hyde [2020] QCA 196
Case: [2020] QCA 196
Decision Date: 11 September 2020

CaseChat Overview and Summary

In the case of R v Hyde, the appellant sought to appeal against his conviction of ten counts of sexual offending against two children. The appellant claimed that the trial judge's refusal to adjourn the trial, despite the late disclosure of the complainants’ father being charged with using the internet to attempt to procure a child under 16 years to engage in a sexual act, resulted in a miscarriage of justice. Additionally, the appellant argued that the trial judge did not adequately put to the jury the possibility that the complainants’ father was the offender and that there were crucial aspects of the required directions which were missing. The appellant further contended that the trial judge's directions to the jury were deficient.

The court had to determine whether the refusal to adjourn the trial resulted in a miscarriage of justice, whether the possibility that the complainants’ father was the offender was not properly put to the jury, and whether the trial judge's directions to the jury were deficient. The court concluded that none of the grounds of appeal should be accepted and that the appeal should be dismissed. The court found that the evidence of the complainants was clear and compelling, and the appellant's distinctive appearance was well described by the complainants. The trial judge's directions to the jury were not deficient, and it was understandable that the appellant's trial counsel did not challenge them.

The appeal was dismissed, and the conviction and sentence of the appellant were upheld. The court found that there was no miscarriage of justice in the trial and that the trial judge's directions to the jury were adequate. The court also found that the possibility that the complainants’ father was the offender was properly put to the jury. Therefore, the appeal was dismissed, and the conviction and sentence of the appellant 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

For the reasons that follow, none of the grounds should be accepted, and the appeal should be dismissed.The evidence The appellant’s wife was a friend of the complainants’ mother. Their families socialised together, and the complainants often went to the appellant’s house, where his wife would look after them after school while their mother was at work. A and C each described a course of frequent and persistent sexual offending by the appellant against her. There was one occasion on which, the complainants said, they were together when he abused them. C described going into her bedroom and finding her sister, A, already in the room with the appellant. The appellant directed them to “do stuff”, and told C to “finger your sister”. She said she had to comply, by putting her fingers in her sister’s vagina. In the same incident, she was made to kiss her sister. On the other occasions, each of them, in the absence of the other, was subjected to abuse involving sexual touching, kissing in an indecent way, oral sex and the penile and digital penetration of the vagina. Most of the offending was described as occurring at the appellant’s house. A relatively small number of these incidents occurred at their own house. One incident, involving the complainant C, occurred in the appellant’s car, and another incident occurred at a workshop owned by the appellant’s brother. There was also an (uncharged) incident where A was abused by the appellant, when the two families were on a camping trip in New South Wales. The offending against each girl ended at about the same time, which was when the two families stopped associating for other reasons. A said that she was then in grade six, going into grade seven, and as I have said, she was a year younger than her sister. In November 2014, C told her husband that the appellant had sexually assaulted her when she was younger. She described in some detail what had happened to her, including the occasion in which he had offended against the two girls at the same time. Soon afterwards, C told a long-standing friend, whom I will call F, of the offending. C also told another of her sisters, B, about what had happened. This led to a family meeting at B’s house, attended by the complainants, their mother, whom I will call K, and their brother. After this meeting, the three sisters and their mother went to the mother’s house to tell their father about the offending. In that way, their father became a witness of their complaints. On the evening on which those meetings occurred, although A was present, she said nothing about offending against her. However, a few days later, A contacted C and the two women met. A then said to C that she did remember the appellant committing offences against her. In particular, she recalled the incident where the two girls were abused at the same time. In their evidence, the complainants were sure that it was the appellant who had committed the offences against them. A described the appellant’s distinctive appearance: he had something like a “lazy eye”, he wore an eye patch, and he had his hair in a “rat’s tail” with a bandana which he always wore. C also described the bandana, the eye patch and other distinctive features of his appearance.

Decision

Reasons for decision

In my conclusion, the directions which were given were not deficient. It is understandable that the appellant’s trial counsel did not challenge them.Conclusion None of the grounds of appeal can be accepted. I would order that the appeal be dismissed. MULLINS JA: I agree with McMurdo JA.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Hyde [2020] QCA 196
PARTIES:	R v HYDE, Allan Charles (appellant)
FILE NO/S:	CA No 293 of 2018 DC No 2500 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 5 November 2018 (Devereaux SC DCJ)
DELIVERED ON:	11 September 2020
DELIVERED AT:	Brisbane
HEARING DATE:	15 April 2020
JUDGES:	Sofronoff P and McMurdo and Mullins JJA
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – CONTROL OF PROCEEDINGS – ADJOURNMENT – GENERALLY – where the appellant was convicted of 10 counts of sexual offending against two children – where, shortly before the trial, the prosecution disclosed that the complainants’ father had been recently charged with using the internet to attempt to procure a child under 16 years to engage in a sexual act – where the appellant applied for an adjournment of the trial, which was refused by the trial judge – whether a miscarriage of justice thereby resulted CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – OTHER CASES – where the appellant submits that the possibility that the complainants’ father was the offender was not properly put to the jury – whether a miscarriage of justice thereby resulted CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – where the appellant submits that although the trial judge directed the jury according to Longman v The Queen and Robinson v The Queen to an extent, there were crucial aspects of the required directions which were missing – whether it was necessary for the judge to make specific comments about certain aspects of the evidence – whether the directions given were deficient Crampton v The Queen (2000) 206 CLR 161; [2000] HCA 60, cited Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, considered R v GW (2016) 258 CLR 108; [2016] HCA 6, cited Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, considered
COUNSEL:	E P Mac Giolla Ri, with R C Taylor, for the appellant D Balic for the respondent
SOLICITORS:	Richard Gray & Associates for the appellant Director of Public Prosecutions (Queensland) for the respondent