SUPREME COURT OF QUEENSLAND
CITATION:
R v Lyall [2016] QCA 350
PARTIES:
R
v
LYALL, Geoffrey William
(appellant)FILE NO/S:
CA No 155 of 2016
DC No 2292 of 2015DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
District Court at Brisbane – Date of Conviction: 12 May 2016
DELIVERED ON:
23 December 2016
DELIVERED AT:
Brisbane
HEARING DATE:
25 October 2016
JUDGES:
Morrison and Philippides and Philip McMurdo JJA
Separate reasons for judgment of each member of the Court, Morrison and Philip McMurdo JJA concurring as to the orders made, Philippides JA dissentingORDERS:
1. Allow the appeal.
2. Set aside the verdict of guilty.
3. Order a retrial on count 2 of the indictment.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted by jury of one count of sodomy – where the offence was said to have occurred on a property owned by the appellant in 1982 or 1983 – where the complainant’s evidence of the sodomy or other sexual misconduct was not supported by other evidence but there was substantial support for the surrounding circumstances, including the complainant’s presence at the appellant’s property – where the complainant had a history of drug abuse and mental illness – where the appellant contends the verdict was unsafe and unsatisfactory – whether on the whole of the evidence the verdict of guilty can be supported
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant was convicted by jury of one count of sodomy – where on the second day of deliberations the jury sent a note to the trial judge asking for a summary of the defence’s closing address – where whilst discussing the request with counsel the trial judge received a second note asking to rehear the appellant’s evidence in relation to the offence – where after discussing the second request with counsel the complainant’s evidence was read back to the jury – where the trial judge then instructed the jury to consider the complainant’s evidence and reconsider if they still required the summary of the defence’s closing – where after retiring for lunch the jury sent a third note saying they no longer required the summary of the defence’s closing – where, after receiving a Black Direction, the jury returned a verdict of guilty – where the appellant contends a miscarriage of justice occurred because the jury were not permitted to hear the defence summary and the trial judge’s statements suggested they may not need to hear the defence summary after rehearing the complainant’s evidence – whether there was a miscarriage of justice
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – where the appellant was convicted by jury of one count of sodomy – where a co-accused, C, was discharged on the…
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- AGLC
- R v Lyall [2016] QCA 350
- Case
- [2016] QCA 350
- Decision Date
CaseChat Overview and Summary
In the matter of R v Lyall, the appellant appealed his conviction by jury of one count of sodomy, arguing that the verdict was unreasonable and that there was a miscarriage of justice. The central issue before the court was whether the trial judge's handling of the jury's requests during deliberations amounted to a miscarriage of justice. The court examined whether the trial judge's refusal to replay the defence's closing address after the jury had reheard the complainant's evidence resulted in an unsafe verdict.
The court found that the jury's request to rehear a portion of the defence's closing address did not necessarily indicate confusion or uncertainty about the law. The trial judge's decision to first replay the complainant's evidence, as requested, was deemed a sensible approach. The jury's subsequent indication that they no longer required the defence summary demonstrated that the requested evidence had been sufficiently considered. The court concluded that the trial judge's actions did not prevent the jury from properly considering all aspects of the case, and thus, the verdict was supported by the evidence.
The court further considered whether the appellant's inability to call a co-accused as a witness due to the defence counsel's failure to advise on the possibility of compelling the witness's attendance amounted to a miscarriage of justice. The court found that this did not constitute a miscarriage of justice as there was no evidence that the co-accused's testimony would have been beneficial to the appellant's defence.
In light of these findings, the court dismissed the appeal, upheld the conviction, and found no miscarriage of justice. The final orders of the court were to allow the appeal, set aside the verdict of guilty, and order a retrial on count 2 of the indictment.
The court found that the jury's request to rehear a portion of the defence's closing address did not necessarily indicate confusion or uncertainty about the law. The trial judge's decision to first replay the complainant's evidence, as requested, was deemed a sensible approach. The jury's subsequent indication that they no longer required the defence summary demonstrated that the requested evidence had been sufficiently considered. The court concluded that the trial judge's actions did not prevent the jury from properly considering all aspects of the case, and thus, the verdict was supported by the evidence.
The court further considered whether the appellant's inability to call a co-accused as a witness due to the defence counsel's failure to advise on the possibility of compelling the witness's attendance amounted to a miscarriage of justice. The court found that this did not constitute a miscarriage of justice as there was no evidence that the co-accused's testimony would have been beneficial to the appellant's defence.
In light of these findings, the court dismissed the appeal, upheld the conviction, and found no miscarriage of justice. The final orders of the court were to allow the appeal, set aside the verdict of guilty, and order a retrial on count 2 of the indictment.
Orders
Orders of the court
1. Allow the appeal.
2. Set aside the verdict of guilty.
3. Order a retrial on count 2 of the indictment.
Background
Background to the litigation
However, I am unable to agree with Philip McMurdo JA as to the first ground of appeal, that a miscarriage of justice occurred because the learned trial judge did not accede to the jury’s requests to rehear a portion of defence counsel’s closing address. This ground was said to constitute a miscarriage of justice because it involved a departure from trial according to law.[1][1]King v The Queen (2012) 245 CLR 588 at [53] per French CJ, Crennan and Kiefel JJ.Factual background Just prior to midday, on the fourth day of the trial, the jury, having retired to consider their verdict late on the previous day, asked if they could “hear the closing statement from the defence regarding the final summary of points as to why we should find the defendant not guilty”.[2] Before defence counsel was heard on this question, another note was received in which the jury asked to hear a particular part of the complainant’s evidence again.[3] The trial judge determined that the first matter could be left at least until the jury had heard the evidence.[4] Defence counsel did not object to the jury hearing the complainant’s evidence first but said that the jury should also be allowed to hear that part of his closing address that they had asked to hear.[5][2]AB 177.12.[3]AB 178.32.[4]AB 179.25.[5]AB 179.30. At 12.28 pm,[6] the jury returned to the Court and the trial judge said that they would hear the complainant’s evidence first. His Honour explained:[7]“I have your two notes. Because you have asked for evidence in the second note I’m going to do that first… You will listen to that and then I’ll ask to you to reconsider whether you want the first note; that is, the closing statement again. You may still. I’m not ruling it out, but I thought it’s best you hear the evidence first, go back for a little while and consider that and if you still wish to agitate the first note, that is, the closing statement from the defence, then I’m happy enough to consider that as well.”[6]AB 183.20.[7]AB 183.25-183.32. After the reading of the relevant portion of the complainant’s evidence, his Honour said:[8]“I’ll just ask to you now to go back to the jury room to consider that evidence. As I say, I am not in any way restricting you from coming back and asking about this closing statement again. It’s just I want you to consider this evidence first and if you still require that particular matter, then counsel and I will address that particular thing there.”[8]AB 188.33-188.37. The jury retired at 12.49 pm. The trial judge said that the jury “seemingly” only wanted the last 10 minutes or so of defence counsel’s closing address[9] and that they had “at least an entitlement” to hear the portion they had requested.[10] At 12.57 pm, the Court adjourned until 2.00 pm. When Court resumed, the following exchange took place between defence counsel and the trial judge:[11][9]AB 190.04.[10]AB 192.11.[11]AB 193.21-194.02.“HIS HONOUR: [Defence counsel], if I might just make myself clear. I did indicate to the jury that they could ask again for the thing they asked for about your particular address to them, but I don’t intend without them asking to play it to them. All right.…[COUNSEL]: Could I just put on the record - - -….[COUNSEL]: - - - the concerns that I have. A jury, having written a note with a certain request, having that request not addressed and - - -HIS HONOUR: But it has been addressed, because I said they’re enabled to bring it back if they wished after they considered the other evidence that they wished to listen to.[COUNSEL]: In my submission, a jury would be reluctant to raise the point again, given what has transpired. I am simply - - -HIS HONOUR: Well, I disagree with that. I disagree with that. And the words I used were ‘they’re free to bring it back again’. All right.…HIS HONOUR: … Well, let’s move on … Now, I understand there was disagreement between you and [the prosecution] about what should be replayed.[COUNSEL]: What they said in that note, as redundant as it may now be, was that they wanted the final summary of points upon which defence relied.…HIS HONOUR: Yes.[COUNSEL]: There was at the – the difficulty I have is that at the conclusion of my address I didn’t have a final summary of points.”
Evidence
Evidence Before The Court
Morrison JA’s analysis of the same authorities resulted in the following conclusion:[28]“In my view, the authorities referred to above establish that unanswered jury questions can cause a miscarriage when they evidence confusion or uncertainty in the corporate mind of the jury. Where they do not signify that, the case for establishing a miscarriage of justice becomes harder.”[28][2016] QCA 240 at [66] (emphasis added). Margaret McMurdo P’s reasons for allowing the appeal was explained as follows:[29]“I cannot accept the respondent’s contention that the jury note in this case was simply to inform the judge and did not require a response before verdict. It was a clear and courteous request for judicial direction following one jury member telling the others that she was raped as a younger woman. It raised the possibility that this juror may be using her past experience to improperly emotionally influence other jurors about the critical question in the trial: the reliability of the complainant. The note was effectively a question about the applicable law. It raised the possibility of some uncertainty in the corporate state of mind of the jury. For that reason, as the trial judge correctly apprehended, despite the initial judicial directions as to impartiality, it was necessary to remind all jurors of their obligation to be impartial, to decide this case on the evidence and to enquire if each juror could do so. A further general enquiry as to whether the jury or any juror had any concerns or questions would also have been prudent. It is true, as the respondent contends, that the trial was short and the jury had been earlier instructed as to the need for impartiality. But the resolution of the complainant’s reliability was by no means a straightforward issue for the jury. It required the careful assessment of her evidence to determine whether it could be accepted as reliable beyond reasonable doubt in light of the delay, her youth and the judge’s firm warning. The jury did not have the benefit of the directions foreshadowed by her Honour before returning their guilty verdicts. This amounted to an error of law. Despite the jury’s difficult task in this case, they deliberated for but a short time before verdict, particularly taking into account the lunch break. In the absence of the direction the trial judge foreshadowed, it may be that the verdict was tainted by the emotions of the juror referred to in the note. There is a real possibility that there has been a miscarriage of justice. The appeal must be allowed and a retrial ordered to ensure justice is seen to be done in this case and to maintain confidence in the criminal justice system.”[29][2016] QCA 240 at [34] (emphasis added). Morrison JA expressed his reasons for taking a somewhat different path, although ultimately concluding a miscarriage of justice had occurred, by stating:[30]“The note here did not evidence confusion or uncertainty. It did not, as in Salama, show confusion that went to the heart of the charge. It did not as in Hickey and Alameddine, go to a question of law at the heart of understanding the offences. The note fitted more in the category dealt with in TAB and Lapins, where the jury resolved the issue to its own satisfaction.The two matters referred to earlier are: first, the use of the word ‘direction’ in the note; and secondly, the fact that the learned trial judge considered it necessary or advisable to respond to it.In my view, the fact that a jury uses the word ‘direction’ in a question asked of a trial judge, should normally connote that the question is a formal request on a matter of importance to the jury. However, it does not necessarily bespeak confusion or corporate uncertainty. Each case depends on its own facts. Here the jury had been told that the trial judge would give them ‘directions … on law’ and that if they needed assistance to ask for it: ‘If you need anything, evidence read, if you need further direction on the law, just tell me’. When the jury asked so soon afterwards for a ‘direction’, it must be taken to mean it was seen by the jury as a matter of law.However, the issue of law did not go to the charges themselves. It was as to the position of the jury, given that a juror had made the disclosure. That puts it into a different category, in my view, to the situations in Hickey, Salama and Alameddine.That being said, the learned trial judge considered it necessary or advisable to respond to it by way of further directions, and announced that decision to counsel for both sides. That gave weight to the question, and, no doubt, the anticipation that the further directions would be given before any verdict. That is a factual twist which is not apparent in any of the authorities referred to. It is the factor that warrants the orders proposed by the President.”[30][2016] QCA 240 at [67]-[71].Salama
Decision
Reasons for decision
It is apparent that the jury were seeking assistance on a question of law and the note manifested uncertainty as to that issue.Conclusion It is evident from a perusal of the transcript of the defence address that the defence address was concerned to outline why, based on the evidence before the Court, the jury would have a reasonable doubt as to the appellant’s guilt. Defence counsel addressed only matters going to the complainant’s evidence and did not reiterate or sum up the evidence given by the appellant, remarking “it’s fresh in your mind”[42] and observing “it is really on the basis of the complainant … that the prosecution have to rely”[43] and that the case “rises and falls with him”.[44] Counsel went on to outline particular alleged inconsistencies in the complainant’s evidence and difficulties in his accounts and the lack of supporting evidence in terms of medical or DNA evidence. Counsel also raised the complainant’s psychiatric history as impinging on the reliability of his evidence.[42]Transcript of closing addresses at 1-3.46.[43]Transcript of closing addresses at 1-3.46-47.[44]Transcript of closing addresses at 1-4.1-2. Defence counsel ended his address with the following words:[45]“So [the complainant] is ultimately the witness that this case rises and falls on. And I would ask you to bring back that idea of – of reasonable doubt now, to unlock it, because when you apply it to the facts in this case – to all the problems with the testimony, the differences of the accounts, the psychiatric issues – what I say is you must have a reasonable doubt about these matters; that you could not be satisfied to the high standard required before you would convict a fellow citizen of charges as serious as that have been levelled against [the appellant].”[45]Transcript of closing addresses at 1-8.26-33. It is apparent from this extract that, contrary to the submission made by defence counsel before the trial judge, which was referred to in this Court, defence counsel did provide “a final summary of points”. In that regard, no misunderstanding of counsel’s address is evident in the first note of the jury referring to “the final summary of points” as to why the appellant should be found not guilty. That summary was, namely, “all the problems with the [complainant’s] testimony, the differences of the accounts, the psychiatric issues”.[46][46]Transcript of closing addresses at 1-8.29-30. Given that the defence address was only concerned to outline the deficiencies in the complainant’s evidence, it is understandable that the focus of the second note was a request to rehear a particular portion of the complainant’s evidence. The trial judge did not fail to respond to the jury’s initial request. Rather, his Honour took a very sensible and pragmatic approach of first providing the jury with the part of the evidence that jury had expressly identified as being of interest to them. Having been provided with the precise evidence requested, the jury indicated that they “no longer required the defence summary”.
Ratio Decidendi
Legal Principle Established
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