R v SDL - [2022] QCA 207

SUPREME COURT OF QUEENSLAND

CITATION:

R v SDL [2022] QCA 207

PARTIES:

R
v
SDL
(appellant)

FILE NO/S:

CA No 320 of 2021
DC No 52 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Rockhampton – Date of Conviction: 24 August 2021 (Clarke DCJ)

DELIVERED ON:

Date of Orders: 4 October 2022;
Date of Publication of Reasons: 25 October 2022

DELIVERED AT:

Brisbane

HEARING DATE:

4 October 2022

JUDGES:

Mullins P and Dalton JA and Boddice J

ORDERS:

Date of Orders: 4 October 2022

1.   Appeal allowed.

2.   Conviction set aside.

3.   Re-trial ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the jury requested to view the complainant’s police interview again – where the trial judge allowed the jury to view the police interview again and also required that the complainant’s pre-recorded evidence-in-chief and cross-examination be replayed – where the trial judge, counsel and appellant were present when the complainant’s evidence was replayed – whether the trial judge erred in failing to remind the jury of the details of the appellant’s evidence after the complainant’s evidence was replayed – whether the trial judge erred in failing to adequately warn the jury about the risk of giving disproportionate weight to the complainant’s evidence after it was replayed – options available to a trial judge when jury asks to see recorded evidence a second time

Gately v The Queen (2007) 232 CLR 208; [2007] HCA 55, considered
R v Bradshaw (1978) 18 SASR 83, cited
R v Evans [1998] SASC 6798, cited
R v H [1999] 2 Qd R 283; [1998] QCA 348, considered
R v NZ (2005) 63 NSWLR 628; [2005] NSWCCA 278, considered
R v O [1996] 3 NZLR 295, considered
R v Rawlings & Broadbent [1995] 2 Cr App R 222, considered
R v Stephenson (1978) 18 SASR 381, cited
R v Storey[2021] QCA 265, considered
R v TQ (2007) 173 A Crim R 385; [2007] QCA 255, considered

COUNSEL:

T A Ryan for the appellant
D C Boyle for the respondent

SOLICITORS:

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

MULLINS P: For the reasons given by Dalton JA, I joined in the making of the orders on 4 October 2022.
DALTON JA: The appellant appeals against a conviction of maintaining an unlawful sexual relationship with his step-daughter for six years between May 2011 and May 2017, at which times she was aged nine to 15. At the hearing of the appeal on 4 October 2022 the Court made orders that the appeal be allowed; the conviction set aside, and that there be a retrial. These are my reasons for joining in the making of those orders.
The course of the trial
The trial began on a Thursday morning. The jury was empanelled, allowed a short…

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 SDL

Details

AGLC: R v SDL [2022] QCA 207
Case: [2022] QCA 207
Decision Date: 4 October 2022

CaseChat Overview and Summary

In the matter of R v SDL, the appellant was convicted in the County Court of a number of serious sexual offences and appealed to the Court of Appeal against his conviction and sentence. The Court of Appeal was tasked with determining whether the trial judge erred in allowing the jury to view the complainant’s police interview and evidence-in-chief and cross-examination a second time, and if so, whether such an error amounted to a miscarriage of justice warranting a new trial. The appellant submitted that the trial judge should have reminded the jury of his evidence after replaying the complainant’s material and should have warned the jury about the risk of giving disproportionate weight to the complainant’s evidence.

The Court of Appeal found that the trial judge had erred in not reminding the jury of the appellant’s evidence and in not adequately warning the jury about the risk of giving disproportionate weight to the complainant’s evidence. The Court concluded that the trial judge’s errors were material and amounted to a miscarriage of justice. While the Court recognised that it is not uncommon for a trial judge to allow a jury to view recorded evidence a second time, it found that the trial judge was obliged to take additional steps to ensure the jury did not give disproportionate weight to the complainant’s evidence after it had been replayed. These steps could have included reminding the jury of the appellant’s evidence and warning the jury about the risk of giving disproportionate weight to the complainant’s evidence. The Court held that the trial judge’s failure to take these steps amounted to a miscarriage of justice.

Accordingly, the Court of Appeal allowed the appeal, set aside the conviction and ordered a re-trial. The Court did not make any orders in relation to the appellant’s sentence, as it was setting aside the conviction and ordering a new trial. The Court emphasised the importance of trial judges taking appropriate steps to ensure a fair trial when a jury requests to view recorded evidence a second time.

Orders

Orders of the court

Date of Orders: 4 October 2022

1. Appeal allowed.

2. Conviction set aside.

3. Re-trial ordered.

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 SDL [2022] QCA 207
PARTIES:	R v SDL (appellant)
FILE NO/S:	CA No 320 of 2021 DC No 52 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Rockhampton – Date of Conviction: 24 August 2021 (Clarke DCJ)
DELIVERED ON:	Date of Orders: 4 October 2022; Date of Publication of Reasons: 25 October 2022
DELIVERED AT:	Brisbane
HEARING DATE:	4 October 2022
JUDGES:	Mullins P and Dalton JA and Boddice J
ORDERS:	Date of Orders: 4 October 2022 1. Appeal allowed. 2. Conviction set aside. 3. Re-trial ordered.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the jury requested to view the complainant’s police interview again – where the trial judge allowed the jury to view the police interview again and also required that the complainant’s pre-recorded evidence-in-chief and cross-examination be replayed – where the trial judge, counsel and appellant were present when the complainant’s evidence was replayed – whether the trial judge erred in failing to remind the jury of the details of the appellant’s evidence after the complainant’s evidence was replayed – whether the trial judge erred in failing to adequately warn the jury about the risk of giving disproportionate weight to the complainant’s evidence after it was replayed – options available to a trial judge when jury asks to see recorded evidence a second time Gately v The Queen (2007) 232 CLR 208; [2007] HCA 55, considered R v Bradshaw (1978) 18 SASR 83, cited R v Evans [1998] SASC 6798, cited R v H [1999] 2 Qd R 283; [1998] QCA 348, considered R v NZ (2005) 63 NSWLR 628; [2005] NSWCCA 278, considered R v O [1996] 3 NZLR 295, considered R v Rawlings & Broadbent [1995] 2 Cr App R 222, considered R v Stephenson (1978) 18 SASR 381, cited R v Storey[2021] QCA 265, considered R v TQ (2007) 173 A Crim R 385; [2007] QCA 255, considered
COUNSEL:	T A Ryan for the appellant D C Boyle for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent