SUPREME COURT OF QUEENSLAND
CITATION:
R v SDS [2022] QCA 106
PARTIES:
R
v
SDS
(appellant/applicant)FILE NO/S:
CA No 148 of 2021
DC No 110 of 2020DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction & Sentence
ORIGINATING COURT:
District Court at Brisbane – Date of Conviction 4 June 2021 Date of Sentence: 8 June 2021 (Rosengren DCJ)
DELIVERED ON:
14 June 2022
DELIVERED AT:
Brisbane
HEARING DATE:
4 April 2022
JUDGES:
Sofronoff P and Morrison and Mullins JJA
ORDERS:
1. Appeal dismissed.
2. Application for leave to appeal against sentence refused.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of seven counts of sexual offending against his step-grandchildren – where the question of cross-admissibility of the evidence between the complainants after the appellant completed his evidence – where defence counsel did not apply to sever the charges on the indictment – whether the course taken by defence counsel is explicable on a basis that has or could have resulted in a forensic advantage – where the learned trial judge proposed giving a similar fact direction – where the learned trial judge ruled that the evidence was not cross-admissible – whether there has been a miscarriage of justice
CRIMNAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to six years’ imprisonment – where no parole eligibility date was set – where the applicant must serve three years in custody before being eligible for parole – whether the learned sentencing judge erred in some misapplication of principle – whether comparable decisions suggest the sentence reflected the overall criminality of offending against two victims – whether the sentence was manifestly excessive
Criminal Code (Qld), s 567
Penalties and Sentences Act 1992 (Qld), s 9Doggett v The Queen (2001) 208 CLR 343; [2001] HCA 46, cited
GBF v The Queen (2020) 94 ALJR 1037; [2020] HCA 40, followed
James v The Queen (2013) 39 VR 149; [2013] VSCA 55, cited
Nicholls v The Queen [2016] VSCA 250, followed
Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9, cited
Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29, cited
Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7, cited
R v AAR[2014] QCA 20, cited
R v CBG[2013] QCA 44, cited
R v GY[2007] QCA 103, cited
R v MCM[2017] QCA 187, cited
R v MCT[2018] QCA 189, cited
R v McNeish[2019] QCA 191, cited
R v Nibigira[2018] QCA 115, cited
R v O’Sullivan and Lee; Ex parte Attorney-General (Qld) (2019) 3 QR 196; [2019] QCA 300, cited
R v PAC[2006] QCA 327, cited
R v PAP
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- AGLC
- R v SDS [2022] QCA 106
- Case
- [2022] QCA 106
- Decision Date
CaseChat Overview and Summary
The court considered whether there had been a miscarriage of justice due to the defence counsel's decision not to apply to sever the charges on the indictment, despite the learned trial judge proposing to give a similar fact direction. The court also assessed whether the course taken by defence counsel was explicable on a basis that could have resulted in a forensic advantage. The court found that the decision not to apply to sever the charges was explicable on a basis that could have resulted in a forensic advantage, and there was no miscarriage of justice. Furthermore, the court examined whether the sentence imposed was manifestly excessive or inadequate, considering the overall criminality of the offending against two victims.
The court held that there had been no miscarriage of justice, and the sentence was not manifestly excessive. The appeal against conviction was dismissed, and the application for leave to appeal against the sentences was also refused. The orders made by the court were to dismiss the appeal and to refuse the application for leave to appeal against the sentence.
Orders
Orders of the court
1. Appeal dismissed.
2. Application for leave to appeal against sentence refused.
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
Ratio Decidendi
Legal Principle Established
That was then reflected in that part of the summing up where the Crown’s address was summarised. The learned trial judge couched the defence line that was being referred to as being as VIC and GDO had colluded together.[67][67]AB 68 lines 4-16.Consideration of submissions Mr Keim SC, appearing with Ms Cappellano of Counsel for the appellant, placed central reliance upon what was said by Gaudron J in TKWJ v The Queen.[68] That was a case where trial counsel made a decision not to call character evidence because it involved the risk that adverse character evidence could then be led by the Crown. Gaudron J[69] referred to cases where the contention is that an accused person was not competently or adequately represented. Her Honour observed that there were two reasons why the question of whether an accused was competently represented posed difficulties for an appellate court.[70] The first was that the conduct of a criminal trial frequently involved defence counsel in making tactical decision designed to obtain a forensic advantage or possibly to avoid a forensic disadvantage. Those decisions might contribute to a defect or irregularity in the trial. The second reason was that, ordinarily, it was not possible to know what was in the defence counsel’s brief.[68](2002) 212 CLR 124; [2002] HCA 46.[69]With whom Gummow and Hayne JJ concurred.[70]TKWJ at [24]. Gaudron J then set out a number of propositions:(a)where a decision taken by counsel contributes to a defect or irregularity in the trial, the tendency is not to inquire into counsel’s conduct, as such, but, rather, to inquiry whether there has been a miscarriage of justice;[71](b)in that exercise, the question whether the course taken by counsel is explicable on a basis that it has or could have resulted in a forensic advantage is a relevant, but not necessarily a decisive, consideration;[72](c)the question whether there has been a miscarriage of justice is usually answered by asking whether the act or omission in question “deprived the accused of a chance of acquittal that was fairly open”;[73](d)the word “fairly” should not be overlooked; a decision to take or refrain from taking a particular course which is explicable on the basis that that it has or could have led to a forensic advantage may well have the consequence that a chance of acquittal that might otherwise have been open was not, in the circumstances, fairly open;[74] and(e)the question whether counsel’s conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage is determined on an objective basis; an appellate court does not inquire whether the course taken by counsel was, in fact, taken for the purpose of obtaining a forensic advantage, but only whether it is capable of explanation on that basis.[75][71]TKWJ at [25].[72]TKWJ at [25].[73]TKWJ at [26], citing Mraz v The Queen (1955) 93 CLR 493 at 514.[74]TKWJ at [26].[75]TKWJ at [27]. Gaudron J then clarified the proposition that if there is a defect or irregularity in the trial, the fact that counsel’s conduct is explicable on the basis that it could have resulted in a forensic advantage is not necessarily determinative of the question whether there has been a miscarriage of justice:[76]“It may be that, in the circumstances, the forensic advantage is slight in comparison with the importance to be attached to the defect or irregularity in question. If so, the fact that counsel’s conduct is explicable on the basis of forensic advantage will not preclude a court from holding that, nevertheless, there was a miscarriage of justice.”[76]TKWJ at [28].