R v Hyde

Case [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…

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Details
AGLC
R v Hyde [2017] QCA 148
Case
[2017] QCA 148
Decision Date

CaseChat Overview and Summary

In the matter of R v Hyde, the appellant faced a conviction on 11 counts of sexual offending against two female complainants who were sisters. The offences included maintaining a sexual relationship with each sister and specific instances of rape and sodomy. The case came before the court on appeal, where the appellant challenged the verdicts, arguing they were unreasonable and not supported by the evidence. The court was required to determine whether the jury's verdict was justifiable based on the evidence presented. Additionally, the appellant argued that the prosecution's closing address had misled the jury by suggesting the complainant's distress while testifying corroborated her account. Furthermore, the appellant contested the trial judge's summing-up, claiming it misstated the defence case regarding the complainants' alleged fabrication of evidence.

The court meticulously reviewed the evidence and the jury's verdicts. It found that while there were inconsistencies in the complainants' testimonies, these did not undermine the overall credibility of their accounts. The court also held that the prosecution's remarks about the complainant's distress were not prejudicial, as the jury was adequately informed about the nature of such observations. Regarding the summing-up, the court concluded that the trial judge's comments, while not perfectly articulated, did not misstate the defence case to the extent that it prejudiced the outcome of the trial. Consequently, the court dismissed the appeal and upheld the convictions.

The court’s reasoning and findings led to the final orders being delivered ex tempore on 30 June 2017. The appeal was allowed, the verdicts of guilty in the District Court were set aside, and a new trial was ordered on those charges.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

It is desirable also to set out the course of submissions about this part of the proposed directions:“HIS HONOUR: So are you saying that – and you see, as I’ve indicated, I was thinking of going to it when I was dealing with 34 and Markuleski, but are you telling me that 50C might be better designed for this purpose?MR NARDONE: I think it – certainly the end of it, yes, your Honour.HIS HONOUR: Just bear with me.MR NARDONE: Well, maybe it’s both [indistinct]HIS HONOUR: See, the introduction of 50C is not very well designed for this kind of case, is it? Well, I suppose it’s true to broadly state that there are separate charges in separate verdicts, but the – and just tell me this. I’m sure it’s in your list, but the event where both girls are together.MR NARDONE: Yes, your Honour.HIS HONOUR: Is that a count?MR NARDONE: No.HIS HONOUR: So that means that that is appropriate in that introduction.MR NARDONE: Yes.HIS HONOUR: Yes. And that second paragraph of 50C, is that the Crown’s position, that each complainant is supported by the other complainant, or is it only in respect of that joint event?MR NARDONE: Your Honour, I’m going to speak frankly. I’m going to concede. It really is only – if there wasn’t that joint event – I mean, while there are similarities, I’m not sure that there are enough for me to be going down that road.HIS HONOUR: But the joint event is what makes this a joint trial, isn’t it?MR NARDONE: Yes. Yes.HIS HONOUR: Right, I mean, the mere fact that C is a recent complainant witness for A doesn’t of itself justify joinder.MR NARDONE: Yes.HIS HONOUR: It would be that joint event that justified the joinder.MR NARDONE: Yes.HIS HONOUR: So doesn’t that mean the second paragraph does apply, but only to that event?MR NARDONE: Yes.HIS HONOUR: Right. Okay. And similarly, the next paragraph applies only in respect of that event, I would think, or do you argue that it goes further, and you can take that question on notice if you want it.MR NARDONE: Your Honour, I’m not sure that there is enough to take it further.HIS HONOUR: Yes. So those next couple of things from that direction – or the next paragraph does. You don’t argue there’s such a similarity that it’s highly improbable the events occurred by chance. That’s going down the Pfennig line, isn’t it?MR NARDONE: Yes. Yes.HIS HONOUR: And this isn’t a Pfennig-type case.MR NARDONE: No.HIS HONOUR. All right. So we would take up those two paragraphs. Well, I don’t think there’s any evidence of concoction, but the whole rest of that direction is really directed to a Pfennig-type case, isn’t it, or it’s describing it there as being a Phillips-type case.MR NARDONE: But isn’t that the – the last two paragraphs that are indented, isn’t that ---HIS HONOUR: On which page?MR NARDONE: On 50.4.HIS HONOUR: Okay. Sorry.MR NARDONE: Perhaps I’ve got an old printout. Sorry.HIN HONOUR: Just – how do they start the paragraph?MR NARDONE: “You can’t use that evidence to reason like this: the evidence persuades us that he is the sort of person that would commit these sort of offences or is of bad character and therefore” ---MS WARDLE: That’s the fourth-last one.MR NARDONE: Sorry, I’ve got an old version. The second paragraph – sorry, the ---HIS HONOUR: I see. “I caution you, you cannot use that evidence to reason.” Is that right?MR NARDONE: Yes. Yes.MS WARDLE: Yes.MR NARDONE: And the paragraph after it.HIS HONOUR: That – see, that’s predicated on the whole thing being a Pfennig case, but the pre-condition in the previous paragraphs arising, which is “If you don’t accept that such similarities exist”, you see? And you’re not saying this is a Pfennig case.MR NARDONE: No.HIS HONOUR: So I think the whole thing falls away. I think what you’re left with – this is what I think you might be left with. I think you are left with the first few paragraphs of 50C, confined to maybe the first three, confined to the joint event, right?MR NARDONE: Yes.HIS HONOUR: And then I think you’re left with the general propensity warning in 66.3.MS WARDLE: I’m just showing him. He’s got an older version. I was just making sure he ---HIS HONOUR: Okay.MS WARDLE: --- had the right bit.” (Emphasis added)

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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