R v OT

Case [2017] QCA 257

SUPREME COURT OF QUEENSLAND

CITATION:

R v OT [2017] QCA 257

PARTIES:

R
v
OT
(appellant/applicant)

FILE NO/S:

CA No 24 of 2017
DC No 173 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Maroochydore – Date of Conviction & Sentence: 10 February 2017 (Jones DCJ)

DELIVERED ON:

3 November 2017

DELIVERED AT:

Brisbane

HEARING DATE:

18 August 2017

JUDGES:

Fraser and McMurdo JJA and McMeekin J

ORDERS:

1.   The appeal be allowed on the convictions for counts two, three, four, five, six, seven, eight, ten, eleven, twelve, thirteen and fourteen on the indictment.

2.   The convictions on those counts be set aside and a retrial be ordered.

3.   The appeal against the convictions on counts one and nine be dismissed.

4.   The parties, within 21 days of the date of this judgment, are to provide written submissions as to whether the application for leave to appeal against sentence for counts one and nine should be refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the appellant was found guilty by a jury of 14 offences of a sexual nature, committed against his stepdaughter at various times over a three year period – where the appellant was convicted of all 14 counts, and was sentenced to various concurrent terms of imprisonment – where the only evidence of the offences came from the complainant – where three other witnesses gave evidence of her preliminary complaints – where the trial judge instructed the jury that they had to give separate consideration to each charge – where the trial judge summarised each of the final addresses – where those summaries did not contain a particularisation of the counts – where the prosecution’s final address did not repeat the particulars – where the appellant argues that the jury could not have discharged its duty to consider each charge separately without being properly reminded by the trial judge of the particulars in relation to each charge – whether there was a miscarriage of justice because the trial judge did not instruct the jury as to the particular facts which had to be proved for each charge

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the jury were provided with transcripts of the entirety of the complainant’s evidence, all of that of another witness in the prosecution case as well as transcripts of the entirety of the evidence of the three witnesses in the defence case, including the appellant – where the appellant argues that the jury should not have been burdened with so much written material and may have been overwhelmed by it – whether there was a miscarriage of justice from the jury being provided with a large volume of written material, absent a direction from the judge that they should…

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R v OT [2017] QCA 257
Case
[2017] QCA 257
Decision Date

CaseChat Overview and Summary

In the matter of R v OT, the appellant, found guilty by a jury of 14 offences of a sexual nature committed against his stepdaughter, challenged his convictions on two grounds. Firstly, he contended that a miscarriage of justice occurred due to the trial judge's failure to instruct the jury, charge by charge, on the particular facts that had to be proved for each count. Secondly, he argued that the jury was overwhelmed by the extensive transcripts provided to them, which impeded their proper deliberation. The appellant's initial challenge to the verdicts on the ground that they were unreasonable was abandoned, as was his application for leave to appeal against sentence.

The legal issues the court needed to address were whether the trial judge's failure to instruct the jury on the particular facts for each charge constituted a miscarriage of justice and whether the jury being provided with extensive transcripts led to a miscarriage of justice. The court considered the appellant's contention that the jury could not have properly considered each charge without being reminded of the particulars for each charge and whether the jury was overwhelmed by the volume of written material provided to them. The court examined whether the trial judge's actions or omissions amounted to a miscarriage of justice and if the jury's ability to deliberate was impeded by the transcripts provided.

The court found that there was no risk of a miscarriage of justice from the provision of the transcripts and from what the judge did and did not say about them. The jury had seen and heard the witnesses only two or three days earlier, and would have read the transcripts with a recollection of the way in which the oral evidence had been given. The volume of material was not so considerable that it made the jury's task too difficult for there to be a proper deliberation by them. However, the court allowed the appeal against convictions on the first ground, on all counts except for counts one and nine, and ordered a retrial for those counts. The appeal against the convictions on counts one and nine was dismissed. The court also ordered the parties to provide written submissions as to whether the application for leave to appeal against sentence for counts one and nine should be refused.

In conclusion, the court found that the trial judge's failure to instruct the jury on the particular facts for each charge constituted a miscarriage of justice, except for counts one and nine. The court ordered a retrial for those counts and dismissed the appeal against the convictions on counts one and nine. The court also ordered the parties to provide written submissions as to whether the application for leave to appeal against sentence for counts one and nine should be refused.

Orders

Orders of the court

1. The appeal be allowed on the convictions for counts two, three, four, five, six, seven, eight, ten, eleven, twelve, thirteen and fourteen on the indictment.

2. The convictions on those counts be set aside and a retrial be ordered.

3. The appeal against the convictions on counts one and nine be dismissed.

4. The parties, within 21 days of the date of this judgment, are to provide written submissions as to whether the application for leave to appeal against sentence for counts one and nine should be refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Originally, the appellant challenged each of those convictions upon the ground that the verdicts were unreasonable. That ground has been abandoned, as has his application for leave to appeal against sentence. The convictions are challenged now upon two grounds, namely:1.That a miscarriage of justice occurred because the trial judge, in summing up to the jury, did not distinguish between the various counts by instructing the jury, charge by charge, as to the particular facts which had to be proved for that charge;2.That a miscarriage of justice resulted from the jury being provided with transcripts of the entirety of the complainant’s evidence, all of that of another witness in the prosecution case as well as transcripts of the entirety of the evidence of the three witnesses in the defence case, including the appellant.The effect of all of this material, it is said, was to overwhelm the jury and thereby impede its proper deliberation.The evidence at the trial There were four witnesses in the prosecution case: the complainant, her younger sister and two school friends of the complainant. The only evidence of the offences came from the complainant. The other witnesses gave evidence of her preliminary complaints. Her sister also testified that she had not observed any wrongdoing by the appellant, in circumstances where most of the offences had taken place in a house where both girls lived. The first complaint of any of these offences was when, in August 2015, the two school friends were told of some of these events. The complainant was then interviewed by police, when she was aged 14. A video recording of that evidence was tendered at the trial.[1] This constituted effectively all of her evidence in chief and her pre-recorded cross-examination was played to the jury. The prosecution case closed at about 11 am on the second day of the trial. The appellant then gave evidence in which he denied any wrongdoing, and called two witnesses who gave testimonial evidence. The defence case closed by lunch on the second day, and that afternoon each counsel addressed the jury.[1]Under s 93A of the Evidence Act 1977 (Qld). On the following day, because of the unavailability of the appellant’s trial counsel, the trial did not continue but resumed on the day after that, when the judge summed up to the jury for just over an hour. They retired to consider their verdicts that morning. After approximately one hour of deliberations, the jury sent to the judge notes in which they raised four questions. The first was whether they could have a transcript of the prosecutor’s address. The judge answered that they could not, because the address had not been transcribed. The second question has no present relevance. The third question requested transcripts of all of the complainant’s evidence and the fourth question requested transcripts of the evidence of her sister. After much discussion about those requests, the judge decided that the jury should have all of that evidence together with the transcript of the appellant’s evidence and that of the two other witnesses called in his case. The transcripts of the evidence in the defence case were provided on the argument of defence counsel.

Decision

Reasons for decision

In my view there was no risk of a miscarriage of justice from the provision of these transcripts and from what the judge did and did not say about them. By the course which was taken, there was no prospect of an undue emphasis upon the evidence of the prosecution case. The jury had seen and heard the witnesses only two or three days earlier and would have read the transcripts with a recollection of the way in which the oral evidence had been given. The volume of material was not so considerable that it made the jury’s task too difficult for there to be a proper deliberation by them. The second ground of appeal is unpersuasive.Conclusion and orders I would allow the appeal against convictions upon the first ground, upon all counts save for counts one and nine. On the appeal against the convictions, I would order that:1.The appeal be allowed on the convictions for counts two, three, four, five, six, seven, eight, ten, eleven, twelve, thirteen and fourteen on the indictment.2.The convictions on those counts be set aside and a retrial be ordered.3.The appeal against the convictions on counts one and nine be dismissed. It will be for the Director of Public Prosecutions to determine whether to proceed to a retrial. The application for leave to appeal against sentence was abandoned. However, in case the appellant would wish to argue that the sentences for counts one and nine should be reduced, because of the outcome on the other counts, at this stage I would not refuse the application for leave to appeal against sentence. It must be said, however, that the sentences upon counts one and nine do not appear to have been increased to incorporate some punishment also for the other counts.[10] On the application for leave to appeal against sentence, at this stage I would simply order the parties, within 21 days of the date of this judgment, to provide written submissions as to whether the application for leave to appeal against sentence for counts one and nine should be refused. [10]cf R v Nagy [2004] 1 Qd R 63. McMEEKIN J: I have read the reasons of McMurdo JA in draft and respectfully agree with those reasons and with the orders that his Honour proposes.

Ratio Decidendi

Legal Principle Established

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