R v JAH - [2022] QCA 172

SUPREME COURT OF QUEENSLAND

CITATION:

R v JAH [2022] QCA 172

PARTIES:

R
v
JAH
(appellant)

FILE NO/S:

CA No 238 of 2021
SC No 792 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 23 September 2021 (Boddice J)

DELIVERED ON:

9 September 2022

DELIVERED AT:

Brisbane

HEARING DATE:

17 August 2022

JUDGES:

Bowskill CJ and Flanagan JA and Wilson J

ORDERS:

1.   The appeal against conviction is allowed;

2.   The verdict of guilty is set aside; and

3.   A re-trial is ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where, following a trial by jury, the appellant was convicted of four counts of rape, three counts of supplying the drug cannabis to a child under 16, and one count of indecent treatment of a child under 16 – where the appellant filed an appeal against his convictions – where the appellant argued that a miscarriage of justice occurred due to the trial proceeding without a material witness being called to give evidence or without an alternative process to cure the defects in the fairness of the trial that were caused by the absence of the material witness – whether a miscarriage of justice occurred as a result of the failure to call this particular witness in the trial

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the appellant filed an appeal against his convictions – where the appellant argued that the trial judge erred in failing to deliver a direction to the jury based on Robinson v The Queen (1997) 197 CLR 162 – whether, given the circumstances, the trial judge was required to give the jury a Robinson direction instead of a general direction as to the credibility of the complainant – whether the failure to give a Robinson direction amounted to a miscarriage of justice

Criminal Code (Qld), s 632

Bromley v The Queen (1986) 161 CLR 315; [1986] HCA 49, cited
R v Apostilides (1984) 154 CLR 563; [1984] HCA 38, cited
R v VM[2022] QCA 88, cited
Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, followed

COUNSEL:

R C Taylor for the appellant
C W Wallis for the respondent

SOLICITORS:

Creevey Russell Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

THE COURT: On 23 September 2021, following a trial by jury, the appellant was convicted of four counts of rape (counts 2, 3, 6 and 10), three counts of supplying the drug cannabis to a child under 16 (counts 1, 4 and 9) and one count of indecent treatment of a child under 16 (count 5). He was acquitted of a further count of supplying cannabis to a child (count 7) 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 JAH

Details

AGLC: R v JAH [2022] QCA 172
Case: [2022] QCA 172
Decision Date: 9 September 2022

CaseChat Overview and Summary

In the matter of R v JAH, the appellant was convicted by a jury of four counts of rape, three counts of supplying the drug cannabis to a child under 16, and one count of indecent treatment of a child under 16. The appellant filed an appeal against his convictions, asserting that a miscarriage of justice occurred due to the trial proceeding without a material witness being called to give evidence or without an alternative process to cure the defects in the fairness of the trial caused by the absence of the material witness. Additionally, the appellant argued that the trial judge erred in failing to deliver a direction to the jury based on Robinson v The Queen (1997) 1997 CLR 162, and that the failure to give such a direction amounted to a miscarriage of justice.

The court was required to determine whether the absence of the material witness resulted in a miscarriage of justice and whether the trial judge's failure to give a Robinson direction amounted to a miscarriage of justice. The court considered the particular circumstances of the case and whether the trial judge's error in failing to give a Robinson direction could have had a substantial influence on the jury's decision. The court also examined whether the trial judge's general direction to the jury regarding the credibility of the complainant was sufficient or whether a specific Robinson direction was required. The court concluded that the failure to call the material witness did not amount to a miscarriage of justice, but that the trial judge's failure to give a Robinson direction did amount to a miscarriage of justice.

The court found that the failure to call the material witness did not amount to a miscarriage of justice, as the witness's testimony would not likely have changed the outcome of the trial. However, the court found that the trial judge's failure to give a Robinson direction amounted to a miscarriage of justice, as the direction was required in the particular circumstances of the case. The court set aside the verdict of guilty and ordered a re-trial, as the miscarriage of justice could not be remedied by any other means. The appeal against conviction was allowed, and the verdict of guilty was set aside. A re-trial was ordered.

Orders

Orders of the court

1. The appeal against conviction is allowed;

2. The verdict of guilty is set aside; and

3. A re-trial is ordered.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v JAH [2022] QCA 172
PARTIES:	R v JAH (appellant)
FILE NO/S:	CA No 238 of 2021 SC No 792 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Conviction: 23 September 2021 (Boddice J)
DELIVERED ON:	9 September 2022
DELIVERED AT:	Brisbane
HEARING DATE:	17 August 2022
JUDGES:	Bowskill CJ and Flanagan JA and Wilson J
ORDERS:	1. The appeal against conviction is allowed; 2. The verdict of guilty is set aside; and 3. A re-trial is ordered.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where, following a trial by jury, the appellant was convicted of four counts of rape, three counts of supplying the drug cannabis to a child under 16, and one count of indecent treatment of a child under 16 – where the appellant filed an appeal against his convictions – where the appellant argued that a miscarriage of justice occurred due to the trial proceeding without a material witness being called to give evidence or without an alternative process to cure the defects in the fairness of the trial that were caused by the absence of the material witness – whether a miscarriage of justice occurred as a result of the failure to call this particular witness in the trial CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the appellant filed an appeal against his convictions – where the appellant argued that the trial judge erred in failing to deliver a direction to the jury based on Robinson v The Queen (1997) 197 CLR 162 – whether, given the circumstances, the trial judge was required to give the jury a Robinson direction instead of a general direction as to the credibility of the complainant – whether the failure to give a Robinson direction amounted to a miscarriage of justice Criminal Code (Qld), s 632 Bromley v The Queen (1986) 161 CLR 315; [1986] HCA 49, cited R v Apostilides (1984) 154 CLR 563; [1984] HCA 38, cited R v VM[2022] QCA 88, cited Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, followed
COUNSEL:	R C Taylor for the appellant C W Wallis for the respondent
SOLICITORS:	Creevey Russell Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent