R v Hyde

[2017] QCA 148

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hyde [2017] QCA 148

PARTIES:

R
v
HYDE, Allan Charles
(appellant)

FILE NO/S:

CA No 110 of 2016
DC No 131 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Beenleigh – Date of Conviction: 20 April 2016

DELIVERED ON:

Orders delivered ex tempore 30 June 2017
Reasons delivered 11 July 2017

DELIVERED AT:

Brisbane

HEARING DATE:

5 April 2017

JUDGES:

Sofronoff P and McMurdo JA and Douglas J
Separate reasons for judgment of each member of the Court, McMurdo JA and Douglas J concurring as to the orders made, Sofronoff P dissenting

ORDERS:

Orders delivered ex tempore on 30 June 2017:

1.   Allow the appeal.

2.   Set aside the verdicts of guilty in the District Court.

3.   Order a new trial on those charges.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of 11 counts of sexual offending against two female complainants who were sisters, including maintaining a sexual relationship with each and specific counts of rape and sodomy – where both complainants gave evidence of frequent sexual offending – where there was some evidence that the appellant was living in Sydney during a period of the alleged frequent occurring in Brisbane and would only visit Brisbane occasionally – where each complainant gave evidence of a single specific instance in which both complainants were assaulted simultaneously which was largely consistent with the other but contained some discrepancies – where the appellant submitted that the evidence of each complainant was in some respects inconsistent with her preliminary complaint – where the events were said to have occurred more than 11 years before the initial complaints – whether it was open to the jury to convict on each of the 11 charges

CRIMINAL LAW – EVIDENCE – MISCELLANEOUS MATTERS – OTHER CASES – where the prosecution’s closing address relied upon the distressed condition of one of the complainants while she was giving evidence as corroborative of her account – where the appellant submitted that the prosecutor had misled the jury, in the absence of a warning by the judge, by inviting them to reason that the complainant’s apparent distress made her account more likely to be true – where the distressed condition of the complainant was not the subject of evidence but was merely an observation of her demeanour while giving evidence – where the prosecution and defence closing addresses were clear about their respective arguments about the complainant’s demeanour – whether a miscarriage of justice occurred

CRIMINAL LAW – PROCEDURE – SUMMING UP – where the defence case included specific claims of concoction by the complainants – where the trial judge, in summing-up, said that there was “no real suggestion or substantial suggestion” of the complainants concocting their evidence together – where the trial judge’s direction, in context, was referring only to the incident in which both complainants alleged…