R v Johnson

Case [2015] QCA 270

SUPREME COURT OF QUEENSLAND

CITATION:

R v Johnson [2015] QCA 270

PARTIES:

R
v
JOHNSON, Glenn Charles
(appellant)

FILE NO/S:

CA No 139 of 2014
DC No 1646 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:


District Court at Brisbane – Unreported, 11 April 2014

DELIVERED ON:

11 December 2015

DELIVERED AT:

Brisbane

HEARING DATE:

22 June 2015

JUDGES:

Gotterson and Morrison and Philippides JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR UNSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant met the complainant on Facebook – where the appellant and complainant had a seven week relationship – where the appellant engaged in “more assertive and rougher sexual encounters” than the complainant was used to – where the complainant asked the appellant to be less sexually aggressive – where the complainant alleges she withdrew her consent during sexual intercourse and that the appellant raped her – where the appellant pleaded not guilty to one count of rape – where the appellant was found guilty by jury after trial – whether the verdict was unreasonable or unsupportable having regard to all the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – where the appellant submits that defence counsel undertook a flagrantly incompetent cross-examination of the complainant – where the appellant submits that the learned trial judge engaged in legal argument, rulings, and admonishment of the defence counsel in the presence of the jury – where the appellant alleges that the learned trial judge and the Crown prosecutor engaged in cross-examination of the complainant – whether there was a miscarriage of justice and the appeal should be allowed

Criminal Code (Qld), s 24
Evidence Act 1977 (Qld), s 21AK, s 93A

Ali v The Queen (2005) 79 ALJR 662; [2005] HCA 8, cited
Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30, considered
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, considered
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited
Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9, cited
R v Brdarovski (2006) 166 A Crim R 366; [2006] VSCA 231, cited
R v Esposito (1998) 45 NSWLR 442; (1998) 105 A Crim R 27, cited
R v McIntyre (2000) 111 A Crim R 211; [2000] NSWCCA 6, considered
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, cited

COUNSEL:

J J Allen QC for the appellant
M R Byrne QC for the respondent

SOLICITORS:

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

  1. GOTTERSON JA:  I agree with the order proposed by Morrison…

Continue reading R v Johnson

Sign in free to access the full text

Details
AGLC
R v Johnson [2015] QCA 270
Case
[2015] QCA 270
Decision Date

CaseChat Overview and Summary

In the case of R v Johnson, the appellant was found guilty by a jury of one count of rape following a trial. The appellant appealed against his conviction on the grounds that the verdict was unreasonable or unsupportable, and that there was a miscarriage of justice due to alleged incompetency of defence counsel and inappropriate conduct by the trial judge. The appeal was dismissed by the court.

The court was required to decide whether the verdict was unreasonable or unsupportable, and whether there was a miscarriage of justice. To determine this, the court needed to assess whether the conduct of defence counsel and the trial judge resulted in a material irregularity in the trial, and whether there was a significant possibility that the irregularity affected the outcome.

The court found that the alleged irregularities did not result in a miscarriage of justice. The deficiencies in defence counsel’s conduct did not leave an immaterial viable defence for the jury, nor did it prevent the jury from giving fair consideration to their verdict. The court also found that the trial judge did not enter the arena in the manner described in R v Esposito. Therefore, the appeal was dismissed.

The appeal is dismissed, and the conviction stands.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

NMAM is Ms NEAM’s daughter. Because of her age her evidence was pre‑recorded in the form of a statement and pre-recorded oral evidence under s 21AK and s 93A of the Evidence Act 1977 (Qld). Her evidence about the events on the night was:(a)she did not know what happened;[6](b)Mr Johnson spoke to her and said that he hurt Ms NEAM,[7] last night;[8](c)Mr Johnson went downstairs to talk to Ms NEAM and then he left; after that NMAM was upset and started screaming at her mother, angry with the situation the mother had put herself in;[9](d)her mother told Mr Johnson to leave.[10][6]AB 112, 883, 890.[7]AB 103-104, 883, 890, 899.[8]AB 106, 883, 890, 899.[9]AB 104, 883, 890-891.[10]AB 896, 899.Evidence of FJSM FJSM is a daughter of Ms NEAM. She said she had met Mr Johnson about five times during the time he was in a relationship with her mother.[11] On 19 September she went to see her mother as a result of a text exchange with her mother.[11]AB 594. The first text at 6.29 pm said: “Can you come over, the baby is losing the plot. I’ve kicked Glenn out.”[12] After establishing that the “baby” was her younger sister, NMAM, FJSM asked why NMAM was losing the plot. Her mother’s response was: “Because of what went down here, she’s very upset and hurt and disappointed.”[13][12]AB 600.[13]AB 601. Her mother told her that:[14](a)she had gone to bed with a blinding headache, just wanted to go to sleep but Mr Johnson initiated sex;(b)her pyjamas came off and that was because Mr Johnson had wanted skin on skin;(c)Mr Johnson started getting rough with her and at that point he had both of her knees pressed up against her rib cage; she later added that her mother told her that at this point she had trouble breathing;[15] she said that it felt like she was being split in half;(d)she then managed to get her left leg down flat on the bed, and her right knee was still pinned up against her rib cage;(e)she was saying stop, “Enough. What don’t you understand about enough?” or “Stop. What don’t you understand about stop?”(f)she managed to use one of her legs to kick him off and that was when it stopped;(g)she had a mark on her rib cage under her right breast, which was the beginning of a bruise or an abrasion;(h)after the event she went to the bathroom and when she wiped herself there was blood and she saw a graze to her labia.[14]AB 596-597.[15]AB 613. FJSM said that she texted Mr Johnson to tell him to stay away, and told that to him on the phone as well.[16] She was furious when she sent the text, saying: “You stay the fuck away from my mother, you motherfucking rapist. I will tell your daughters and I will call the police. You stay the fuck away.”[17] She said she sent that text because: “My mother had just told me she’d been raped by him. I was furious. I wanted him to stay away.”[18][16]AB 597.[17]AB 605.[18]AB 620. The phone call was shortly later, when she answered her mother’s phone and told Mr Johnson: “It’s FJSM. You stay away from my mother and my sisters. If you come near this house, I will tell your daughters and the police what you did. And you stay the fuck away. Do you understand?”[19] Mr Johnson kept saying, “I’m sorry, I’m sorry”, and FJSM said “I don’t want to hear [you’re] sorry. Stay the fuck away. Do you understand? Do you understand?”[20][19]AB 607.[20]AB 607.

Decision

Reasons for decision

I do not consider that the conduct of which complaint is made had the effect of producing a miscarriage of justice by denying Mr Johnson a fair chance of acquittal.Conclusion For the reasons expressed above I would dismiss the appeal. PHILIPPIDES JA: I agree with Morrison JA that the appeal should be dismissed for the reasons stated by his Honour. I add the following additional observations concerning the ground of appeal that counsel’s conduct of the trial was “flagrantly incompetent”, resulting in a miscarriage of justice. Where such a contention is raised it is relevant to ask two questions. The first is whether counsel’s conduct resulted in a material irregularity in the trial. The second is whether there is significant possibility that the irregularity affected the outcome.[271] Where the Court concludes that a miscarriage of justice has occurred the conviction must be quashed; there is no scope for applying the proviso.[272] Where the Crown case is overwhelming (which was conceded not to have been the position here), then it will be unlikely that a miscarriage of justice will be shown to have occurred.[273] The heavy burden of establishing that counsel’s conduct constituted material irregularity amounting to a miscarriage of justice is likely to be discharged where counsel’s conduct has been shown to be flagrantly incompetent. [274] But even where counsel’s incompetence cannot be described as “flagrant”, it may have so plainly affected the result that miscarriage of justice is shown.[275][271]TKWJ at [79]; Ali at [18]; Nudd at [24].[272]TKWJ at [97]; Nudd at [100].[273]Nudd at [20], [33] and [159].[274]TKWJ at [80].[275]TKWJ at [84]. In the present case, such complaints as to defence counsel’s conduct of the trial that are pointed to by the appellant, including that other counsel may have legitimately limited the defence case to issues raised by s 24 of the Criminal Code and thus not attacked the credit of the complainant nor cross-examined on the possibility of motive, did not, as Morrison JA has explained, result in there being a miscarriage of justice. Even if the deficiencies identified by the appellant can be seen as an irregularity in the trial, they were immaterial to the outcome. As the respondent correctly submitted, such deficiencies as occurred in the conduct of the defence case, did not result in a viable defence not being left for the jury, nor the possibility of the jury not giving fair consideration to their verdict. The latter point was borne out by the terms of the jury’s note and the jury’s requests to rehear the pretext call and clarify directions as to s 24. Nor was the clarifying questioning by the learned trial judge such, as was the case in R v Esposito,[276] that the judge “enter[ed] the arena”.[276](1998) 45 NSWLR 442.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.