R v SDL - [2021] QCA 14

SUPREME COURT OF QUEENSLAND

CITATION:

R v SDL [2021] QCA 14

PARTIES:

R
v
SDL
(appellant)

FILE NO:

CA No 57 of 2020
DC No 57 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Emerald – Date of Conviction: 2 March 2020 (Barlow QC DCJ)

DELIVERED EX TEMPORE ON:

11 February 2021

DELIVERED AT:

Brisbane

HEARING DATE:

11 February 2021

JUDGES:

Morrison and Mullins JJA and Lyons SJA

ORDERS:

1.   Appeal allowed.

2.   Conviction set aside.

3.   New trial ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IRREGULARITIES IN RELATION TO JURY – OTHER CASES – where the appellant was convicted after a trial before a jury in a small regional centre of one count of maintaining an unlawful sexual relationship with a child – where after the trial commenced the appellant recognised one of the jurors as the brother of an associate of the appellant – where the prosecutor and the appellant’s trial counsel applied for the discharge of the jury – where the trial judge discharged the juror for apprehended bias – whether there were grounds for the trial judge to discharge the juror

CRIMINAL LAW – EVIDENCE – COMPLAINTS – ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT – where the appellant was convicted after a trial before a jury of one count of maintaining an unlawful sexual relationship with a child – where two witnesses gave evidence of preliminary complaint had told of them by the complainant – where the complaint was a bare assertion of misconduct alleged against the appellant with minimal detail of the offending – whether the disclosures to the two witnesses were unambiguously referable to the conduct disclosed by the complainant in the evidence

Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A
Jury Act 1995 (Qld), s 56

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63, cited
Wu v The Queen (1999) 199 CLR 99; [1999] HCA 52, cited

COUNSEL:

N V Weston for the appellant
D Nardone for the respondent

SOLICITORS:

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

MULLINS JA: The appellant was convicted after a trial that was completed in three days before a jury in a small regional centre of one count of maintaining an unlawful sexual relationship with a child (who was formerly his stepdaughter) between May 2011 and May 2017.
There are two grounds of appeal. The first is that a miscarriage of justice occurred due to the learned trial judge discharging a juror and proceeding with a jury of 11. The second is that the trial judge erred in admitting as evidence of preliminary complaint the respective testimony of witness A and witness B.
Was there a miscarriage of justice when one juror was discharged?
Before the jury was empanelled, the appellant’s trial counsel (who is not the counsel appearing on this appeal for the appellant)…

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 [2021] QCA 14
Case: [2021] QCA 14
Decision Date: 11 February 2021

CaseChat Overview and Summary

The appellant was convicted in a trial by jury of one count of maintaining an unlawful sexual relationship with a child. The conviction was challenged on two primary grounds: first, the discharge of a juror and, second, the admissibility of evidence regarding the complaint made by the complainant. The case was appealed to the relevant appellate court.

The primary legal issue was whether the trial judge had grounds to discharge the juror who was identified as the brother of an associate of the appellant. The court had to determine whether the trial judge's decision to discharge the juror was justified by an apprehended bias. Additionally, the court examined whether the evidence of the preliminary complaint given by two witnesses was admissible and if it could be unequivocally linked to the conduct described by the complainant during their testimony.

The appellate court found that the trial judge was correct in discharging the juror due to the reasonable apprehension of bias. The court held that the relationship between the juror and the appellant's associate created a situation where impartiality could be questioned. Furthermore, the court determined that the evidence of the preliminary complaint was admissible, as the disclosures to the two witnesses were sufficiently linked to the allegations made by the complainant. However, the court concluded that the irregularities in the jury process were significant enough to warrant a new trial.

The court ordered that the appeal be allowed, the conviction set aside, and a new trial be ordered. The reasoning was that the irregularity in the jury process had the potential to affect the fairness of the trial, and therefore a new trial was necessary to ensure the appellant received a fair hearing.

Orders

Orders of the court

1. Appeal allowed.

2. Conviction set aside.

3. New trial ordered.

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

Full text does not contain this section.

CITATION:	R v SDL [2021] QCA 14
PARTIES:	R v SDL (appellant)
FILE NO:	CA No 57 of 2020 DC No 57 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Emerald – Date of Conviction: 2 March 2020 (Barlow QC DCJ)
DELIVERED EX TEMPORE ON:	11 February 2021
DELIVERED AT:	Brisbane
HEARING DATE:	11 February 2021
JUDGES:	Morrison and Mullins JJA and Lyons SJA
ORDERS:	1. Appeal allowed. 2. Conviction set aside. 3. New trial ordered.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IRREGULARITIES IN RELATION TO JURY – OTHER CASES – where the appellant was convicted after a trial before a jury in a small regional centre of one count of maintaining an unlawful sexual relationship with a child – where after the trial commenced the appellant recognised one of the jurors as the brother of an associate of the appellant – where the prosecutor and the appellant’s trial counsel applied for the discharge of the jury – where the trial judge discharged the juror for apprehended bias – whether there were grounds for the trial judge to discharge the juror CRIMINAL LAW – EVIDENCE – COMPLAINTS – ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT – where the appellant was convicted after a trial before a jury of one count of maintaining an unlawful sexual relationship with a child – where two witnesses gave evidence of preliminary complaint had told of them by the complainant – where the complaint was a bare assertion of misconduct alleged against the appellant with minimal detail of the offending – whether the disclosures to the two witnesses were unambiguously referable to the conduct disclosed by the complainant in the evidence Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A Jury Act 1995 (Qld), s 56 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63, cited Wu v The Queen (1999) 199 CLR 99; [1999] HCA 52, cited
COUNSEL:	N V Weston for the appellant D Nardone for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent