SUPREME COURT OF QUEENSLAND
CITATION:
R v Kelly [2022] QCA 275
PARTIES:
R
v
KELLY, Dianne Joy
(appellant)FILE NO/S:
CA No 302 of 2021
DC No 49 of 2020DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
District Court at Beenleigh – Date of Conviction: 3 November 2021 (Jackson KC DCJ)
DELIVERED ON:
23 December 2022
DELIVERED AT:
Brisbane
HEARING DATE:
16 November 2022
JUDGES:
McMurdo and Bond and Dalton JJA
ORDERS:
1. Appeal allowed.
2. Conviction set aside.
3. Retrial ordered.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was found guilty after trial of one count of assault occasioning bodily harm – where the appellant worked as a disability support worker – where the complainant, her client, was found with injuries consistent with strangulation at a respite care house – where the appellant and the complainant were the only people known to be at the house at the time the complainant was injured – where the appellant did not have much sleep while she was caring for the complainant – where, after the incident, the appellant twice mentioned to the complainant’s mother that she washed the complainant’s bandana – where the bandana was later found on the complainant’s bedroom floor with blood on it – where the appellant denied to police that the bandana was on the floor and that she saw blood on the bandana – where the medical evidence was that the bandana may have been the ligature used to strangle the complainant – where the evidence was wholly circumstantial – whether it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt having regard to all the evidence
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where, in closing addresses, the prosecutor invited the jury to infer guilt from the appellant gratuitously mentioning the bandana to the complainant’s mother and from what were contended to be lies to the police about the bandana being bloodied and on the floor after the complainant was injured – whether the primary judge erred in not giving an Edwards direction – whether there was a miscarriage of justice
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63, considered
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, applied
R v WBS[2022] QCA 180, citedCOUNSEL:
S J Hamlyn-Harris for the appellant
A Nikolic for the respondentSOLICITORS:
Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent
McMURDO JA: In Osland v The Queen,[1] Gaudron and Gummow JJ said that when a jury might treat lies as evidence of guilt, the preferable course is for the trial judge to ascertain precisely what the prosecution contends may be made of the evidence in question, before instructing the jury, as required by Edwards v The Queen
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CaseChat Overview and Summary
The appellant contended that the evidence was wholly circumstantial and that it was not open to the jury to be satisfied beyond reasonable doubt of her guilt. The Court of Appeal considered the circumstantial evidence, including the injuries on AB, the bloodstained bandana found on the floor, and the appellant's statements to the complainant's mother and police. The Court also examined the medical evidence which suggested the bandana could have been the ligature used in the strangulation.
The Court of Appeal found that the primary judge erred in not giving an Edwards direction, as the prosecutor had invited the jury to infer guilt from the appellant's statements and alleged lies. The Court concluded that the error was not harmless and led to a miscarriage of justice. As a result, the conviction was set aside, and a retrial was ordered.
In light of the above, the Court allowed the appeal, set aside the conviction, and ordered a retrial.
Orders
Orders of the court
1. Appeal allowed.
2. Conviction set aside.
3. Retrial ordered.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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