R v Phelps - [2015] QCA 141

SUPREME COURT OF QUEENSLAND

CITATION:

R v Phelps [2015] QCA 141

PARTIES:

R
v
PHELPS, Cary Glenn
(appellant)

FILE NO:

CA No 328 of 2014
DC No 985 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Unreported, 11 December 2014

DELIVERED ON:

7 August 2015

DELIVERED AT:

Brisbane

HEARING DATE:

14 July 2015

JUDGES:

Fraser and Gotterson JJA and Flanagan J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The appeal be dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant had been charged with two counts of rape and three counts of indecent dealing – where the appellant was convicted of one count of rape and one count of indecent dealing but was found not guilty of the other counts – where the offences occurred on the same day – whether the verdicts of guilty were inconsistent with the acquittals – whether it was reasonably open to the jury to find the appellant guilty

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON DIRECTION – OTHER MATTERS – where the jury asked for, and played, the s 21AK and s 93A evidence during their deliberations – where the trial judge directed that the jury not give disproportionate weight to the pre-recorded evidence – whether the trial judge’s directions upon the replaying of the pre-recorded evidence were sufficient to avoid any risk of unfairness to the appellant

Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited
R v BCU[2014] QCA 292, considered
R v SCG[2014] QCA 118, considered

COUNSEL:

J J Allen for the appellant
S J Farnden for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: The appellant was found guilty by a jury of one count of rape (count 1) and one count of indecent treatment of a child with the circumstances of aggravation that the child was under 12 years and was in the care of the appellant for the time being (count 2). He was found not guilty of one count of rape (count 3) and of two counts of indecent treatment of a child with the same circumstances of aggravation (counts 4 and 5). The appellant appealed against the convictions on five grounds. Two of those grounds were abandoned. The remaining grounds of appeal are that the verdict of the jury was unreasonable, the verdicts of guilty were inconsistent with the verdicts of not guilty, and the trial judge’s directions to the jury about the defence case after the jury had viewed evidence admitted under s 21AK and s 93A of the Evidence Act 1977 were not balanced.
Grounds 1 and 2: the verdicts of the jury were unreasonable and the guilty verdicts are inconsistent with the…

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 Phelps

Details

AGLC: R v Phelps [2015] QCA 141
Case: [2015] QCA 141
Decision Date: 7 August 2015

CaseChat Overview and Summary

In the case of R v Phelps, the appellant was charged with two counts of rape and three counts of indecent dealing, stemming from incidents that occurred on the same day. The appellant was convicted of one count of rape and one count of indecent dealing but acquitted of the remaining charges. The appellant appealed against the conviction, arguing that the verdicts were inconsistent and that the trial judge had misdirected the jury regarding the evidence presented. The legal issues before the court were whether the verdicts of guilty were inconsistent with the acquittals and whether the trial judge’s directions on the replaying of pre-recorded evidence were sufficient to prevent any risk of unfairness to the appellant.

The court examined the consistency of the verdicts, noting that the jury had acquitted the appellant of the remaining charges while convicting him on some counts. The court held that it was reasonably open to the jury to convict the appellant of some counts while acquitting him of others, as the jury was entitled to assess the evidence and decide the credibility of the witnesses for each count separately. The court also considered the trial judge’s directions regarding the replaying of pre-recorded evidence and found that the directions were sufficient to ensure that the jury did not give disproportionate weight to the evidence. The court concluded that the trial judge had adequately cautioned the jury against placing undue reliance on the pre-recorded evidence, thereby avoiding any risk of unfairness to the appellant.

Given the court’s findings, the appeal was dismissed, and the convictions were upheld. The court found that the jury’s verdicts were consistent and that the trial judge’s directions were sufficient to prevent any unfairness to the appellant. The appellant’s conviction for one count of rape and one count of indecent dealing remained intact.

Orders

Orders of the court

The appeal be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Phelps [2015] QCA 141
PARTIES:	R v PHELPS, Cary Glenn (appellant)
FILE NO:	CA No 328 of 2014 DC No 985 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane – Unreported, 11 December 2014
DELIVERED ON:	7 August 2015
DELIVERED AT:	Brisbane
HEARING DATE:	14 July 2015
JUDGES:	Fraser and Gotterson JJA and Flanagan J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The appeal be dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant had been charged with two counts of rape and three counts of indecent dealing – where the appellant was convicted of one count of rape and one count of indecent dealing but was found not guilty of the other counts – where the offences occurred on the same day – whether the verdicts of guilty were inconsistent with the acquittals – whether it was reasonably open to the jury to find the appellant guilty CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON DIRECTION – OTHER MATTERS – where the jury asked for, and played, the s 21AK and s 93A evidence during their deliberations – where the trial judge directed that the jury not give disproportionate weight to the pre-recorded evidence – whether the trial judge’s directions upon the replaying of the pre-recorded evidence were sufficient to avoid any risk of unfairness to the appellant Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited R v BCU[2014] QCA 292, considered R v SCG[2014] QCA 118, considered
COUNSEL:	J J Allen for the appellant S J Farnden for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent