R v SCG

Case [2014] QCA 118 27 May 2014

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SUPREME COURT OF QUEENSLAND

CITATION:

R v SCG [2014] QCA 118

PARTIES:

R
v
SCG
(appellant)

FILE NO/S:

CA No 37 of 2014
DC No 59 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Kingaroy

DELIVERED ON:

27 May 2014

DELIVERED AT:

Brisbane

HEARING DATE:

15 May 2014

JUDGES:

Gotterson and Morrison JJA and Jackson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Allow the appeal.1.

Set aside the verdicts on counts 2, 3, 4 and 5.2.

Order a retrial on those counts.3.

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 charged with five counts of indecent dealing with a child under 16 years – where after a trial the jury were unable to agree on count 1, returned majority guilty verdicts on counts 2, 3 and 5 and returned a unanimous guilty verdict on count 4 – where the complainant gave evidence by way of s 21AK and s 93A of the Evidence Act 1977 (Qld) – where during deliberations the jury requested and was allowed by the learned primary judge to watch the entirety of the complainant’s evidence again – where the learned primary judge neither reminded the jury of the appellant’s evidence nor warned the jury not to give undue weight to the complainant’s evidence having watched it again – whether there was a miscarriage of justice

Criminal Code 1899 (Qld), s 668E(1)(A)
Evidence Act 1977 (Qld), s 21AK, s 93A

Gately v The Queen (2007) 232 CLR 208; [2007] HCA 55, followed
R v FAE[2014] QCA 69, followed
R v GAO[2012] QCA 54, followed
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, cited

COUNSEL:

P J Callaghan QC, with B P Dighton, for the appellant
D L Meredith for the respondent

SOLICITORS:

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

GOTTERSON JA: I agree with the orders proposed by Morrison JA and with the reasons given by his Honour.

MORRISON JA: The appellant pleaded not guilty to five counts of indecent treatment of a child under the age of 16. The offences were alleged to have occurred on a date unknown between 1 November 2012 and 1 May 2013. After a trial the jury were unable to agree on count 1, returned majority verdicts of guilty on counts 2, 3 and 5, and returned a unanimous verdict of guilty on count 4.

The single ground of the appeal[1] was that:
[1]As amended at the commencement of the hearing, without objection from the Crown.

1. The learned trial judge erred when, after the jury were played recordings of the entirety of the complainant’s evidence for a second time, he –

1.1 failed to warn the jury to guard against the risk…

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 SCG

Details

AGLC: R v SCG [2014] QCA 118
Case: [2014] QCA 118
Decision Date: 27 May 2014

CaseChat Overview and Summary

In the case of R v SCG, the appellant was charged with five counts of indecent dealing with a child under 16 years. The trial concluded with the jury unable to reach a verdict on the first count. However, they returned majority guilty verdicts on counts 2, 3 and 5, and a unanimous guilty verdict on count 4. The complainant gave evidence under sections 21AK and 93A of the Evidence Act 1977 (Qld). During deliberations, the jury requested to rewatch the complainant's evidence, a request granted by the primary judge. Notably, the primary judge did not remind the jury of the appellant's evidence or caution them against giving undue weight to the complainant's evidence after it was rewatched. The appeal focused on whether these actions constituted a miscarriage of justice.

The legal issues before the court were whether the primary judge's failure to remind the jury of the appellant's evidence and not caution them against giving undue weight to the complainant's evidence after rewatching it amounted to a misdirection or non-direction, thereby resulting in a miscarriage of justice. The appellant argued that the primary judge's omissions were significant enough to warrant a retrial, given the jury's reliance on the complainant's evidence. The court needed to determine whether these omissions impacted the fairness of the trial and whether a retrial was necessary.

The court held that the primary judge's omissions constituted a significant error. The failure to remind the jury of the appellant's evidence and the lack of a warning against undue weight to the complainant's evidence after it was rewatched could have led to an unfair trial. The court found that these errors amounted to a miscarriage of justice. The court concluded that the omissions were substantial and likely influenced the jury's decision, thus necessitating a retrial to ensure a fair trial for the appellant.

The orders made by the court were to allow the appeal, set aside the verdicts on counts 2, 3, 4 and 5, and order a retrial on those counts. The court's decision underscored the importance of ensuring that all evidence, including the defence's evidence, is fairly considered by the jury. The retrial aimed to rectify the errors and ensure that the appellant received a fair trial.

Orders

Orders of the court

Allow the appeal.1.

Set aside the verdicts on counts 2, 3, 4 and 5.2.

Order a retrial on those counts.3.

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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Actions

Citations

R v SCG [2014] QCA 118

Most Recent Citation

R v MCC [2014] QCA 253

Cases Citing This Decision

R v Pbo [2024] QCA 238
Citation 1 (Para 3)

…ing, depends on the particular case,[2] bearing in mind that the overriding consideration for the trial judge is fairness and balance.[3] [2] R v SCG [2014] QCA 118 at [35]; R v SDL [2022] QCA 207 at [31]. [3] R v H [1999] 2 Qd R 283 at [18] per McMurdo P.…
R v Storey [2021] QCA 265
Citation 2 (Para 24)

…[1999] 2 Qd R 283 at 291. [5][2005] QCA 40. [6][2012] QCA 54 at [20] – [21]. [7][2014] QCA 69. [8](2007) 232 CLR 208; [2007] HCA 55. [9][2014] QCA 118; (2014) 241 A Crim R 508.…
R v CCI [2019] QCA 202
Citation 3 (Para 7)

…matter referred to by the Crown in their address. No doubt there are other matters that may arise.” [20][2012] QCA 54. [21][2014] QCA 69. [22][2014] QCA 118. [23]With whom Gotterson JA and Jackson J agreed.…
AJM v Commissioner of Police [2019] QDC 25
Citation 4

…and Sentences Act 1992 (Qld) ss 3(3), 9(2)(a), 44, 48 Ajax v Bird [2010] QCA 2 Hall v Bobbermen [2009] QDC 188 Long v Spivey [2014] QCA 118 Shaw v Yule [1995] QCA 611 Smith v Ash [2010] QCA 112 COUNSEL: The appellant is self-represented M Aittola for the respondent SOLICITORS: The appellant is self-represented D…
R v Halliday [2018] QCA 279
Citation 5 (Para 14)

…were played both the complainant’s original statement to police and her pre-recorded evidence, including her cross examination in full. [88][2014] QCA 118. [89][2014] QCA 69. [90][2012] QCA 54. [91][2005] QCA 40.…
R v Fao [2018] QCA 73
Citation 6 (Para 12)

…st was that undue weight would be given to the replayed evidence where there was no warning or reminder given about competing evidence.[4] [3][2014] QCA 118. [4] R v SCG [2014] QCA 118 at [35].…
R v LAK [2018] QCA 30
Citation 7 (Para 31)

…that evidence was given; where that is relevant it is likely to have been a matter referred to by the Crown in their address.” [14][2014] QCA 118. [15] SCG at [35]. [16] SCG at [35].…
R v Ali [2015] QCA 191
Citation 8 (Para 21)

…dence twice.[6] As the extract from the transcript set out above reveals, the learned trial judge did not direct the jury in these terms. [6] R v SCG [2014] QCA 118 at [35], [36].…
R v Phelps [2015] QCA 141
Citation 9 (Para 8)

…petition or summarising of relevant parts of that evidence, and possibly comment upon the manner in which the evidence was given.” [2][2014] QCA 118 at [35]-[36].…
R v Smith [2014] QCA 315
Citation 10 (Para 1)

…ounts by the prejudice stirred up against the appellant in the minds of the jury by the replaying of the evidence.[50] [46][2014] QCA 69 at [25]. [47][2014] QCA 118 at [35], [36]. [48][2014] QCA 253 at [37]. [49]As the respondent correctly submitted, since the appellant had not sought and been refused the directi…
R v MCC [2014] QCA 253
Citation 11 (Para 1)

…. See R v H ;[11] R v FAE ;[12] R v GAO [13] and R v SCG .[14] [11][1999] 2 Qd R 283, 291. [12][2014] QCA 69, [23]. [13][2012] QCA 54, [20]-[24]. [14][2014] QCA 118.…

See all citing cases →

Cases Cited

R v FAE [2014] QCA 69
Citation 1 (Para 1)

…ion of the appellant’s evidence, should not stand in the way of concluding that there has been a miscarriage of justice.[63] [63] R v FAE [2014] QCA 69, at [21]; TKWJ v The Queen (2002) 212 CLR 124, at [16]-[17], [25]-28], [81]-[85], [101] and [106]-[108].…
R v GAO [2012] QCA 54
Citation 2 (Para 1)

…vanced by the appellant in this case. At [22] the Court referred to the decision in R v GAO [64] in terms which bear repeating here:[65] [64] R v GAO [2012] QCA 54. [65] GAO at [20]-[24].…
Gately v The Queen [2007] HCA 55
Citation 3

…tice Criminal Code 1899 (Qld), s 668E(1)(A) Evidence Act 1977 (Qld), s 21AK, s 93A Gately v The Queen (2007) 232 CLR 208; [2007] HCA 55, followed R v FAE [2014] QCA 69, followed R v GAO [2012] QCA 54, followed TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, cited COUNSEL: P J Callaghan QC, with B P Dighton,…
TKWJ v The Queen [2002] HCA 46
Citation 4

…07] HCA 55, followed R v FAE [2014] QCA 69, followed R v GAO [2012] QCA 54, followed TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, cited COUNSEL: P J Callaghan QC, with B P Dighton, for the appellant D L Meredith for the respondent SOLICITORS: Legal Aid Queensland for the appellant Director of Public Prose…

Legislation Cited

Evidence Act 1977 (Qld) 21AK
2 mentions (from Para 1)

CITATION:	R v SCG [2014] QCA 118
PARTIES:	R v SCG (appellant)
FILE NO/S:	CA No 37 of 2014 DC No 59 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Kingaroy
DELIVERED ON:	27 May 2014
DELIVERED AT:	Brisbane
HEARING DATE:	15 May 2014
JUDGES:	Gotterson and Morrison JJA and Jackson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Allow the appeal.1. Set aside the verdicts on counts 2, 3, 4 and 5.2. Order a retrial on those counts.3.
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 charged with five counts of indecent dealing with a child under 16 years – where after a trial the jury were unable to agree on count 1, returned majority guilty verdicts on counts 2, 3 and 5 and returned a unanimous guilty verdict on count 4 – where the complainant gave evidence by way of s 21AK and s 93A of the Evidence Act 1977 (Qld) – where during deliberations the jury requested and was allowed by the learned primary judge to watch the entirety of the complainant’s evidence again – where the learned primary judge neither reminded the jury of the appellant’s evidence nor warned the jury not to give undue weight to the complainant’s evidence having watched it again – whether there was a miscarriage of justice Criminal Code 1899 (Qld), s 668E(1)(A) Evidence Act 1977 (Qld), s 21AK, s 93A Gately v The Queen (2007) 232 CLR 208; [2007] HCA 55, followed R v FAE[2014] QCA 69, followed R v GAO[2012] QCA 54, followed TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, cited
COUNSEL:	P J Callaghan QC, with B P Dighton, for the appellant D L Meredith for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent