R v JX

Case [2016] QCA 240

SUPREME COURT OF QUEENSLAND

CITATION:

R v JX [2016] QCA 240

PARTIES:

R
v
JX
(appellant)

FILE NO/S:

CA No 229 of 2015
DC No 159 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Townsville – Date of Conviction: 18 August 2015

DELIVERED ON:

Orders delivered ex tempore 21 September 2016
Reasons delivered 23 September 2016

DELIVERED AT:

Brisbane

HEARING DATE:

3 June 2016

JUDGES:

Margaret McMurdo P and Morrison JA and North J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Orders delivered ex tempore on 21 September 2016:

1.   The indictment is amended to insert the words “on a date unknown” between “that” and “between”.

2.   The appeal against conviction is allowed.

3.   The verdicts of guilty are set aside.

4.   A retrial is ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of two counts of rape of a child – where the complainant maintained her account of the alleged offending and gave a rational explanation for not making a contemporaneous complaint – where the judge directed the jury to carefully scrutinise the appellant’s evidence – where the complainant’s account was uncontradicted – where the jury were entitled to accept the complainant’s account as reliable beyond reasonable doubt

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where a jury note requested “direction” from the judge on “one member of the jury informing of being raped as a younger woman” – where the judge’s initial directions to the jury informed them of the importance of impartiality and all jurors indicated they could be impartial – where the note was consistent with the jury complying with the judge’s directions – whether the note created an apprehension or suspicion that the jury was not impartial

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the judge did not give directions to the jury about the note before taking the verdict – where the note indicated uncertainty about the corporate state of mind of the jury – where it was necessary for the judge to remind all jurors of the obligation to be impartial – whether there was a miscarriage of justice

Criminal Code (Qld), s 572(3), s 620

Alameddine v R [2012] NSWCCA 63, cited
Ashley v The Queen [2016] NTCCA 2, cited
R v AP[2003] QCA 445, cited
R v Fahey, Solomon & AD [2002] 1 Qd R 391; [2001] QCA 82, cited
R v Hickey (2002) 137 A Crim R 62; [2002] NSWCCA 474, cited
R v Knight, unreported, New South Wales Court of Criminal Appeal, Hunt, Wood, McInerney JJ, 18 December 1990, cited
R v Lapins [2007] SASC 281

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Details
AGLC
R v JX [2016] QCA 240
Case
[2016] QCA 240
Decision Date

CaseChat Overview and Summary

The case of R v JX involved an appeal against the appellant's conviction on two counts of raping a child. The matter was heard in the Queensland Court of Appeal, which was tasked with determining whether the verdicts were unreasonable or insupportable having regard to the evidence presented. The appeal also raised issues concerning potential miscarriages of justice due to certain irregularities during the trial.

The primary legal issues before the court were whether the jury's verdict was unreasonable or insupportable in light of the evidence, and if there were any irregularities during the trial that amounted to a miscarriage of justice. Specifically, the court had to consider the reliability of the complainant's evidence, which was uncontradicted and detailed, and the impact of a jury note revealing that one juror had been raped as a child. The court also had to assess whether the judge's handling of the jury note before the verdict was appropriate and whether it created any reasonable apprehension or suspicion of partiality.

The court found that the jury's verdict was reasonable and supported by the evidence. The complainant's account was consistent and rational, providing a plausible explanation for the delay in reporting the offences. The judge's initial directions to the jury on impartiality were clear, and the jury's note was consistent with the jury following these directions. The court held that the fact a juror had been a victim of a similar crime did not necessarily mean they could not act impartially. The judge's failure to give further directions about the note before taking the verdict did not create a reasonable apprehension of bias. Consequently, the appeal was dismissed in relation to the verdict's reasonableness and the alleged miscarriage of justice.

In conclusion, the court granted the respondent's application to amend the indictment to specify the date of the offences as unknown. The appeal against the conviction was dismissed, and the verdicts of guilty were set aside. A retrial was ordered to ensure the appellant received a fair trial.

Orders

Orders of the court

Orders delivered ex tempore on 21 September 2016:

1. The indictment is amended to insert the words “on a date unknown” between “that” and “between”.

2. The appeal against conviction is allowed.

3. The verdicts of guilty are set aside.

4. A retrial is ordered.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In essence, the respondent submits that none of these contentions are made out in the circumstances here and the appeal should be dismissed. I will deal more fully with the respondent’s contentions in discussing each ground of appeal in turn.Conclusion The respondent rightly concedes that the counts were defective in that they charged the rapes as continuing offences and applies to amend the indictment to insert the words “on a date unknown” between “that” and “between” in each count.[38] The appellant does not contend it is inappropriate to allow amendment, even at this late stage. That concession too, is rightly made. The power under s 572(3) Criminal Code 1899 (Qld) to amend an indictment where no injustice will be done includes amending an indictment after verdict at appellate level: see R v Fahey & Ors[39] and R v AP.[40] I would grant the respondent’s application to amend the indictment by inserting the words, “on a date unknown” between “that” and “between” in each count.[38]See [1] of these reasons.[39][2002] 1 Qd R 391.[40][2003] QCA 445, [18]. As to the first ground of appeal, the respondent’s case was not without its difficulties. These have been highlighted by the appellant, as they were by his counsel at trial. The complainant, however, maintained throughout a thorough cross-examination that the appellant committed the alleged offences. There were opportunities, albeit limited, for him to have committed them in the manner she described. The judge correctly directed the jury to scrutinise her evidence with great care because of the delay and to only convict if satisfied of its truth and accuracy. The complainant gave a rational explanation as to why she did not make a contemporaneous complaint: she was ashamed and did not want anyone to know. Her sister was two years younger than her and would have been but three or four years old at the time of the alleged offences so that this was one explanation for not remembering the incident. In any case, the complainant’s description of the bathroom made it plausible that the offending could have occurred out of her sister’s line of vision and, with the shower running, also out of her hearing. After all, the complainant’s evidence was not that she yelled out for help or screamed out loudly in pain. The fact that her sister could give no evidence to support the complainant’s evidence did not require the jury to reject it. The details surrounding the complainant’s essay which led to her complaint and her subsequent counselling could have been, but were not, explored by the defence at trial. This gap in the prosecution case is no reason to reject the complainant’s evidence. The complainant’s evidence was uncontradicted. After reviewing the whole of the evidence, I am satisfied it was open to the jury to conclude beyond reasonable doubt that the appellant was guilty of both offences. The first ground of appeal is not made out. As to the second ground of appeal, the fact that the jury informed the judge shortly before they returned their verdicts that one juror was “raped as a younger woman” does not necessarily mean that this juror was partial, or that she infected other jurors and the verdict. The judge’s initial directions to which I have referred[41] made clear to the jury their obligations as to impartiality and all jurors indicated their ability to be impartial. The fact that a juror has been a victim of a crime, perhaps a crime of the type charged against the accused person, does not automatically mean the juror cannot decide the case impartially in accordance with their solemn oath or affirmation. The concept of a jury trial by 12 peers makes it likely that sometimes one or more jurors will themselves have been victims of crime, even of the type charged against the accused person. This does not preclude the juror or jurors from being empanelled if they consider they can act impartially and there is no reason to objectively consider that their empanelment would undermine confidence in the criminal justice system. Significantly, the note did not state that the juror concerned was acting partially or seeking to improperly influence other jurors. As the respondent contends, the note was consistent with the jury conscientiously following the judge’s initial directions: to inform the court if any information that was not in evidence was brought into the jury room. Had the jury been given careful directions as to the note, in light of the judge’s initial, clear directions about the need for juror impartiality, the fair-minded and informed member of the public referred to in Webb[42] would not have had a reasonable apprehension or suspicion that the juror to whom the note referred did not discharge her duty impartially, or had improperly infected either the deliberations of other jurors, or the verdict. The second ground of appeal is not made out.[41]See [3] and [4] of these reasons.[42]Set out in [19] of these reasons.

Ratio Decidendi

Legal Principle Established

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