R v Pearce - [2022] QCA 43

SUPREME COURT OF QUEENSLAND

CITATION: R v Pearce [2022] QCA 43

PARTIES:

R v PEARCE, Benjamin Graeme
(appellant)
FILE NO/S: CA No 226 of 2021
DC No 65 of 2021
DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction
ORIGINATING District Court at Southport – Date of Conviction: 20 August
COURT: 2021 (Jackson QC DCJ)
DELIVERED ON: Date of Orders: 18 March 2022
Date of Publication of Reasons: 1 April 2022
DELIVERED AT: Brisbane
HEARING DATE: 18 March 2022
JUDGES: McMurdo and Bond JJA and Flanagan J
ORDERS: Orders delivered: 18 March 2022
1. Appeal allowed.
2. Convictions set aside.
3. Retrial is ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IRREGULARITIES IN RELATION TO JURY – where the appellant was convicted of two counts of rape – where in the
course of the trial a juror secreted a note into their phone case
– where the note recorded a communication with the bailiff –
where the trial judge questioned the juror and bailiff about the

note – where the juror was discharged and the trial continued with 11 jurors – where there was an unauthorised communication between the bailiff and the jury – whether the trial judge failed to discharge the jury – whether a miscarriage of justice occurred – whether the appellant was bound by decision not to apply for the discharge of the jury – whether
the proviso could be applied
Criminal Code (Qld), s 617, s 668E(1A)
Jury Act 1995 (Qld), s 54, s 56(1)
Oaths Act 1867 (Qld), s 31
Black v The Queen (1993) 179 CLR 44; [1993] HCA 71,
considered
Crosdale v R [1995] 2 All ER 500; [1995] UKPC 14, cited
Orreal v The Queen (2021) 96 ALJR 78; [2021] HCA 44, cited
R v Birks (1990) 19 NSWLR 677, cited
R v Crowe [1985] 2 Qd R 389; [1985] QSCCCA 50,
considered
R v DBB [2013] 1 Qd R 188; [2012] QCA 96, cited
R v Jackson and Le Gros [1995] 1 Qd R 547; [1994]
QCA 46, considered
R v Kashani-Malaki [2010] QCA 222, cited
R v Orgles & Orgles (1994) 98 Cr App R 185, considered
R v Roberts [2005] 1 Qd R 408; [2004] QCA 366, considered
R v Watson [1988] QB 690, cited
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, cited
COUNSEL: A J Kimmins and E J Engwirda for the appellant
S Cupina for the respondent
SOLICITORS: Potts Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the
respondent

McMURDO JA: For the reasons given by Bond JA, I joined in the making of the
Court’s orders on 18 March 2022.
BOND JA:
Introduction
The appellant was a 25-year old male accused of two counts of raping an 18-year-old female complainant on Saturday, 17 August 2019 at Burleigh Heads in Queensland.
The first count alleged that the appellant had committed an act…

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 Pearce

Details

AGLC: R v Pearce [2022] QCA 43
Case: [2022] QCA 43
Decision Date: 1 April 2022

CaseChat Overview and Summary

The case of R v Pearce involved an appeal against the appellant's conviction of two counts of rape. The appellant argued that there were irregularities in the jury's deliberations that warranted a new trial. The appeal was heard in the Queensland Court of Appeal. The primary legal issue the court had to decide was whether the irregularities in the jury's deliberations were so significant that they warranted a new trial.

The court found that there were three significant irregularities in the conduct of the trial. Firstly, there was an unauthorised communication between the bailiff and a juror, which exposed the entire jury to the content of the question and answer. This was a clear departure from the fundamental principle that a trial must take place in the presence of the accused person and that jurors should only deliberate based on the evidence presented in court. Secondly, there was a possibility of other discussions between the bailiff and the jury that were not recorded in the transcript, which created uncertainty about whether there was any other pressure on the jury to reach a verdict. Finally, the court noted that the trial judge had directed the jury in a manner consistent with the Benchbook, but the irregularities still occurred.

The court concluded that the irregularities were significant enough to warrant a new trial. The court found that the unauthorised communication between the bailiff and the juror was a clear departure from the fundamental principle of the criminal justice system, and there was uncertainty about whether there were any other discussions between the bailiff and the jury. The court also noted that the trial judge had directed the jury in a manner consistent with the Benchbook, but the irregularities still occurred.

The court ordered that the appeal be allowed, and the convictions be quashed. The case was to be remitted to the District Court for a new trial. The court emphasised that the irregularities were serious and warranted a new trial to ensure the integrity of the criminal justice system.

Orders

Orders of the court

Orders delivered: 18 March 2022

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The matter was not otherwise raised with the jury during the trial judge’s summing up. The subject matter on which the bailiff had communicated to the jury was not raised. The trial judge did direct the jury in a manner consistently with the Benchbook that they must try to reach a unanimous verdict, that is a verdict on which they all agreed, whether guilty or not guilty and that they must ensure that no external influence played a part in their deliberations. He also stated that once they had retired to consider their verdict, the Court ran on their time rather than the Court’s time. Consideration The circumstances just recorded reveal three significant irregularities in the conduct of this trial. First, there was a departure from the fundamental tenet of our criminal justice system that, ordinarily, a criminal trial must take place in the presence of the accused person, and jurors are required to perform their task based only on the evidence presented in court and are to be insulated so far as is possible from extraneous information and outside influences: see s 617 of the Criminal Code; R v Jackson and Le Gros [1995] 1 Qd R 547 per Macrossan CJ, McPherson JA and White J at 549; and R v Kashani- Malaki [2010] QCA 222 per McMurdo P (with whom Fraser JA and Fryberg J agreed). In R v Jackson at 550-551, the Court observed: “The rule prohibiting unauthorised communications between bailiff and jurors is considered an essential safeguard for the integrity of the trial process. … It may be compared with the similar embargo on communications between judge and jury otherwise than in open court: R. v. Crowe [1985] 2 Qd.R. 389, … Both are really incidents of the fundamental principle in s. 617 of the Criminal Code that, subject to defined exceptions, the trial must take place in the presence of the accused person in open court, and not, as it were, behind his back.” That fundamental principle also finds reflection: In this case, it was evident that there had been an unauthorised communication between bailiff and jury which constituted a clear departure from this fundamental tenet. On the bailiff’s version of events this conduct occurred when she was asked a question by juror no. 9 while the jury was all sitting around the table in the jury room. The operative assumption must be that the entire jury was exposed to the content of the juror’s question and the bailiff’s answer. On both versions of events, the bailiff acted contrary to her oath, and also exposed herself to punishment for contempt. Further, there was to my mind real uncertainty on the question whether there was any other discussion concerning the case between the bailiff and the jury. The transcript did not record the juror’s response to that question. And I would not share the trial judge’s readiness to accept the bailiff’s unsworn statement to the effect that there was Second, it is fundamental that the members of the jury must be free to deliberate without any pressure being brought to bear on them: see Black v The Queen (1993) 179 CLR 44 per Mason CJ, Brennan, Dawson and McHugh JJ at 50. Indeed, it has been said that it is a cardinal rule of criminal procedure that a trial judge must avoid any hint of pressure on a jury to reach a verdict: see R v Watson [1988] QB 690 at 700, applied by Lord Steyn on behalf of the Privy Council in Crosdale v R [1995] 2 All ER 500 at 510.

CITATION:	R v Pearce [2022] QCA 43
PARTIES:	R v PEARCE, Benjamin Graeme
(appellant)
FILE NO/S:	CA No 226 of 2021 DC No 65 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING	District Court at Southport – Date of Conviction: 20 August
COURT:	2021 (Jackson QC DCJ)
DELIVERED ON:	Date of Orders: 18 March 2022 Date of Publication of Reasons: 1 April 2022
DELIVERED AT:	Brisbane
HEARING DATE:	18 March 2022
JUDGES:	McMurdo and Bond JJA and Flanagan J
ORDERS:	Orders delivered: 18 March 2022
1. Appeal allowed.
2. Convictions set aside.
3. Retrial is ordered.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IRREGULARITIES IN RELATION TO JURY – where the appellant was convicted of two counts of rape – where in the
course of the trial a juror secreted a note into their phone case
– where the note recorded a communication with the bailiff –
where the trial judge questioned the juror and bailiff about the
note – where the juror was discharged and the trial continued with 11 jurors – where there was an unauthorised communication between the bailiff and the jury – whether the trial judge failed to discharge the jury – whether a miscarriage of justice occurred – whether the appellant was bound by decision not to apply for the discharge of the jury – whether
the proviso could be applied
Criminal Code (Qld), s 617, s 668E(1A) Jury Act 1995 (Qld), s 54, s 56(1) Oaths Act 1867 (Qld), s 31 Black v The Queen (1993) 179 CLR 44; [1993] HCA 71, considered Crosdale v R [1995] 2 All ER 500; [1995] UKPC 14, cited Orreal v The Queen (2021) 96 ALJR 78; [2021] HCA 44, cited R v Birks (1990) 19 NSWLR 677, cited R v Crowe [1985] 2 Qd R 389; [1985] QSCCCA 50, considered R v DBB [2013] 1 Qd R 188; [2012] QCA 96, cited R v Jackson and Le Gros [1995] 1 Qd R 547; [1994] QCA 46, considered R v Kashani-Malaki [2010] QCA 222, cited R v Orgles & Orgles (1994) 98 Cr App R 185, considered R v Roberts [2005] 1 Qd R 408; [2004] QCA 366, considered R v Watson [1988] QB 690, cited TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, cited
COUNSEL:	A J Kimmins and E J Engwirda for the appellant S Cupina for the respondent
SOLICITORS:	Potts Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent