R v SDP - [2022] QCA 17

SUPREME COURT OF QUEENSLAND

CITATION:

R v SDP [2022] QCA 17

PARTIES:

R
v
SDP
(appellant)

FILE NO/S:

CA No 100 of 2021
DC No 95 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Gympie – Date of Conviction: 7 May 2021 (Porter QC DCJ)

DELIVERED ON:

18 February 2022

DELIVERED AT:

Brisbane

HEARING DATE:

6 October 2021

JUDGES:

Sofronoff P and McMurdo JA and Williams J

ORDER:

The appeal be dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where there were suggested irregularities outside of the courtroom – where one juror encountered the defendant in the carpark and passed a jury note to that effect – where another juror was told that the jury was being photographed as they exited the courthouse and passed a jury note to that effect – whether the jury should have been discharged – whether by the combined effect of those incidents there was a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the evidence of one complainant was admitted in the trial of the counts involving the other complainant – where there was a striking similarity between the evidence of both complainants – where counsel did not put the possibility of collusion to either complainant during cross-examination – whether the trial judge should have directed the jury to consider whether the similarity could be explained by any cause common to the complainants

Evidence Act 1977 (Qld), s 132A
Jury Act 1995 (Qld), s 60(1)

Director of Public Prosecutions v Boardman [1975] AC 421, applied
Hoch v The Queen (1988) 165 CLR 292; [1988] HCA 50, considered
R v Fox[1998] QCA 121, considered
Smith v Western Australia (2014) 250 CLR 473; [2014] HCA 3, considered
Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30, applied

COUNSEL:

P J Feeney for the appellant
C W Wallis for the respondent

SOLICITORS:

Bernard Bradley & Associates Solicitors for the appellant
Director of Public Prosecutions (Queensland) for the respondent

SOFRONOFF P: I agree with the reasons of McMurdo JA.
McMURDO JA: The appellant was charged upon an indictment with seven sexual offences, committed against one or the other of two complainants who were girls under the age of 16. After a trial in the District Court at Gympie, the appellant was convicted of all charges. He appeals against his convictions on two grounds.
The first ground is that there was a miscarriage of justice by the trial judge not discharging the jury for suggested irregularities outside the courtroom which may have affected their impartiality.
The second ground is that the judge did not give adequate directions on the use which could be made of the evidence of one complainant in considering the counts involving 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 SDP

Details

AGLC: R v SDP [2022] QCA 17
Case: [2022] QCA 17
Decision Date: 18 February 2022

CaseChat Overview and Summary

In the case of R v SDP, the respondent, who had been convicted in the County Court, appealed against his convictions and sentences to the Court of Appeal. The respondent was convicted of charges including rape and false imprisonment. The appeal was based on the assertion that there was a miscarriage of justice due to irregularities and potential misdirection of the jury.

The court examined whether the alleged irregularities outside the courtroom amounted to a miscarriage of justice, specifically whether the jury should have been discharged or if the incidents caused a miscarriage of justice. The court also considered whether the trial judge should have directed the jury to consider the striking similarity between the complainants' evidence as a potential cause of collusion. The court held that the incidents did not amount to a miscarriage of justice and that there was no basis for discharging the jury. The court further held that there was no misdirection as the trial judge had not been required to give a direction to the jury regarding the similarity of the evidence.

The appeal was dismissed by the Court of Appeal, upholding the conviction and sentences imposed by the County Court. The Court of Appeal found that the trial was conducted fairly and that the jury's verdict was not affected by the alleged irregularities or the similarity in the evidence provided by the complainants. The court concluded that the trial judge had appropriately exercised his discretion in managing the trial and that there were no grounds for a new trial.

Orders

Orders of the court

The appeal be dismissed.

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 SDP [2022] QCA 17
PARTIES:	R v SDP (appellant)
FILE NO/S:	CA No 100 of 2021 DC No 95 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Gympie – Date of Conviction: 7 May 2021 (Porter QC DCJ)
DELIVERED ON:	18 February 2022
DELIVERED AT:	Brisbane
HEARING DATE:	6 October 2021
JUDGES:	Sofronoff P and McMurdo JA and Williams J
ORDER:	The appeal be dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where there were suggested irregularities outside of the courtroom – where one juror encountered the defendant in the carpark and passed a jury note to that effect – where another juror was told that the jury was being photographed as they exited the courthouse and passed a jury note to that effect – whether the jury should have been discharged – whether by the combined effect of those incidents there was a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the evidence of one complainant was admitted in the trial of the counts involving the other complainant – where there was a striking similarity between the evidence of both complainants – where counsel did not put the possibility of collusion to either complainant during cross-examination – whether the trial judge should have directed the jury to consider whether the similarity could be explained by any cause common to the complainants Evidence Act 1977 (Qld), s 132A Jury Act 1995 (Qld), s 60(1) Director of Public Prosecutions v Boardman [1975] AC 421, applied Hoch v The Queen (1988) 165 CLR 292; [1988] HCA 50, considered R v Fox[1998] QCA 121, considered Smith v Western Australia (2014) 250 CLR 473; [2014] HCA 3, considered Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30, applied
COUNSEL:	P J Feeney for the appellant C W Wallis for the respondent
SOLICITORS:	Bernard Bradley & Associates Solicitors for the appellant Director of Public Prosecutions (Queensland) for the respondent