R v Kelly - [2022] QCA 275

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 2020

DIVISION:

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, cited

COUNSEL:

S J Hamlyn-Harris for the appellant
A Nikolic for the respondent

SOLICITORS:

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

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 Kelly

Details

AGLC: Content removed [2022] QCA 275
Case: [2022] QCA 275
Decision Date: 23 December 2022

CaseChat Overview and Summary

In R v Kelly, the appellant was convicted of one count of assault occasioning bodily harm. The case involved the appellant, a disability support worker, and her client, AB, who was found with injuries consistent with strangulation at a respite care house. The primary judge was asked to determine whether the conviction was unreasonable or insupportable having regard to the evidence, and whether there was a miscarriage of justice due to misdirection or non-direction during closing addresses.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

The jury might have thought it unlikely that anyone accessed the house during the relevant time. Even if they had, it may have been possible to make the bed and place the bandana on the floor, but the jury might well have thought that the bloodstains on top of the bed looked as though they had been deposited at a time when the bed was made, and the jury may well have thought it very difficult indeed to sprinkle droplets of blood on the bandana on the floor, which seemed very much like the other droplets of blood on the bedroom and bathroom floor. There was no suggestion in the evidence of any motive for anyone to do such things. All in all, the jury might have found the idea that someone interfered with the doona and the bandana after the appellant left the house most unlikely.Medical evidence The medical experts were not cross-examined; the medical evidence was not controversial. AB’s paediatric neurologist gave evidence that he had an IQ of less than 70 and was dependent on carers for all his activities of daily living. She said that AB was not capable of engaging in self‑harm firstly, because he lacked manual dexterity and secondly, because he did not have the intellectual capacity to “even formulate the idea of – of self‑harm or of – suicide”. AB’s face, scalp and superior neck were covered with a “warm erythematous flush” with petechiae, and there was a distinct demarcation between the erythematous skin at the top of his neck and the rest of his neck. That demarcation line was “near circumferential with a four to six centimetre gap at the posterior aspect of the neck.” A forensic medical officer gave evidence. He explained that erythema meant redness, and that petechiae were pinpoint haemorrhages in the skin where “little red blood cells can leak out of the – the small veins and get – get under the skin and are just – are – are visible as very small red dots”. These represented “congestion due to probable obstruction to the – the veins of the neck”. There was a subconjunctival haemorrhage in one of AB’s eyes which could have been caused by increased pressure to the veins. The forensic doctor described a linear fine abrasion running around AB’s neck. The outer layer of the skin had been damaged by some movement across the skin. As to the type of ligature involved, the doctor’s evidence was that it “appears to be broad … more like a piece of material … than a rope or a cord.” He looked at a photograph of the bandana and agreed that use of it as a ligature could explain the injuries. The doctor could say that the ligature had been applied across the neck and not from above (as in a hanging) because the line of abrasion was horizontal, rather than angled. The abrasion was consistent with pressure coming from behind AB, “So if someone is applying pressure from behind, the abrasion will run further around towards the back of the neck”. He agreed that the four to six centimetre sparing of abrasion at the back of the neck was consistent with someone manually applying a ligature; this area of non-abrasion “would be where their hands were in – in relation to the person’s neck”. He agreed that the injury was consistent with a person standing behind AB applying a ligature.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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 2020
DIVISION:	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, cited
COUNSEL:	S J Hamlyn-Harris for the appellant A Nikolic for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent