R v SDT

Case [2022] QCA 159 30 August 2022

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SUPREME COURT OF QUEENSLAND

CITATION:

R v SDT [2022] QCA 159

PARTIES:

R
v
SDT
(appellant)

FILE NO/S:

CA No 61 of 2021
DC No 454 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 8 March 2021 (Dick SC DCJ)

DELIVERED ON:

30 August 2022

DELIVERED AT:

Brisbane

HEARING DATE:

19 April 2022

JUDGES:

Morrison and McMurdo JJA and Boddice J

ORDERS:

1.   Allow the appeal.

2.   Set aside the conviction on count 1 and order a re-trial on that count.

3.   Otherwise dismiss the appeal.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – FURTHER EVIDENCE – where the appellant was convicted of seven offences including one count of torture – where the evidence of medical practitioners with whom the appellant had consulted about the complainant was not led at trial, despite the request of the appellant that this occur – where the appellant’s solicitor had this medical evidence at the time of trial but had not given it to defence counsel – where defence counsel deposed to the fact that he would have made use of the evidence at trial had he seen it – where the medical evidence is new evidence, not fresh evidence – where the Court has a “residual discretion” to set aside a conviction and order a re-trial where evidence is not fresh evidence, if to refuse to do so would result in a miscarriage of justice – whether, if received, the further evidence, when evaluated in light of the evidence adduced at trial, gives rise to a significant possibility that had the further evidence been adduced at trial, a jury acting reasonably would have acquitted the appellant – whether there was a miscarriage of justice

Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26, applied
Lawless v The Queen (1979) 142 CLR 659; [1979] HCA 49, applied
Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35, cited
Nudd v The Queen (2006) 80 ALJR 614; (2006) 225 ALR 161; [2006] HCA 9, applied
R v Condren; Ex parte Attorney-General Qld) [1991] 1 Qd R 574, cited
R v Davidson[2014] QCA 348, cited
R v HBR[2017] QCA 193, applied
R v Hodges [2019] 1 Qd R 172; [2018] QCA 92, considered
R v Katsidis; Ex parte Attorney-General (Qld)[2005] QCA 229, considered
R v Main; Ex parte Attorney-General (Qld) (1999) 105 A Crim R 412; [1999] QCA 148, cited
R v Plomp – Unreported – CCA 28.8.62, cited
R v Spina[2012] QCA 179, applied
R v Stephens[2021] QCA 127, applied
R v VI[2013] QCA 218, cited
R v Young (No 2) [1969] Qd R 566, cited
Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35, applied
Strickland v Washington 466 US 668 (1984), cited
TKWJ v…

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 SDT

Details

AGLC: R v SDT [2022] QCA 159
Case: [2022] QCA 159
Decision Date: 30 August 2022

CaseChat Overview and Summary

The appellant, SDT, appealed against his conviction on seven charges, including one count of torture. The Court of Appeal for the Supreme Court of Queensland was tasked with reviewing the case. The central issue was whether the Court had the authority to set aside the conviction and order a re-trial due to the omission of crucial medical evidence that was not presented at the trial, despite the appellant's request and the availability of such evidence to his legal team.

The appellant argued that the exclusion of the medical evidence led to a miscarriage of justice, as the evidence, if considered, would have likely influenced the jury's decision. The court acknowledged the significance of the appellant's request for the evidence to be presented and the failure of his legal team to provide it. The court also noted that the evidence in question was not fresh evidence, but new evidence, and thus the court retained a residual discretion to set aside the conviction if doing so would prevent a miscarriage of justice.

The Court of Appeal found that had the medical evidence been presented, there was a significant possibility that the jury would have acquitted the appellant. Consequently, the court allowed the appeal, set aside the conviction on count 1, and ordered a re-trial on that count. The appeal was otherwise dismissed, and no further orders were made concerning the other charges.

Orders

Orders of the court

1. Allow the appeal.

2. Set aside the conviction on count 1 and order a re-trial on that count.

3. Otherwise dismiss the appeal.

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.

Actions

Citations

R v SDT [2022] QCA 159

Most Recent Citation

R v VN [2023] QCA 184

Cases Citing This Decision

R v Anderson [2025] QCA 105
Citation 1

…monstrated Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9, applied R v BJM [2022] QSC 307, applied R v SDT (2022) 11 QR 556; [2022] QCA 159, cited TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, cited COUNSEL: D J Walsh for the appellant M A Green for the respondent SOLICITORS: Guest Lawyers for the appell…
Medical & Aesthetic Training Academy Pty Ltd v Kim [2024] QCATA 102
Citation 2 (Para 2)

…sfy that requirement. [8] Comlin Holdings Pty Ltd v Metlej Developments Pty Ltd [2019] NSWCA 73; Pearce v Western Australia [2014] WASCA 156; R v SDT [2022] QCA 159; Lawless v The Queen (1979) 142 CLR 659 at 674-676.…
R v ABL [2024] QCA 110
Citation 3 (Para 26)

…ports or that a miscarriage of justice occurred[105] for the reasons outlined in paragraphs [108]-[109] and [121] above. [105]As discussed in R v SDT [2022] QCA 159 at [37]-[61].…
R v VN [2023] QCA 184
Citation 4

…ddon [1999] 2 Qd R 387; [1998] QCA 248 , cited R v RH [2005] 1 Qd R 180; [2004] QCA 225 , cited R v SDT (2022) 11 QR 556; [2022] QCA 159 , cited R v SEC [2023] QCA 128 , cited R v Skondin [2015] QCA 138 , cited R v Spina [2012] QCA 179 , cited R v Szabo [2001] 2 Qd R 214; [2000] QCA 194 , cited Ratten v The Queen…
S & S Professionals Pty Ltd as trustee of the Aana Aahana Family Trust v Blue Ribbon Motors (Ipswich) Pty Ltd [2023] QCATA 73
Citation 5 (Para 13)

…between the applicant and Westpoint Autos, photographs of the dashboard of the vehicle and extracts from a vehicle maintenance manual. [9] R v SDT [2022] QCA 159.…

See all citing cases →

Cases Cited

R v Stephens [2021] QCA 127
Citation 1 (Para 3)

…duce it, but the Court retains a residual discretion to receive further evidence if that is necessary to avoid a miscarriage of justice.”[34] [32][2021] QCA 127. [33][2021] QCA 127 at [27]. [34]Citing Spina at [32]-[34] and VI at [64]-[66].…
R v Hodges [2018] QCA 92
Citation 2 (Para 11)

…so”, the failure to adduce that evidence lying with the accused.” (Footnotes omitted, emphasis added.) [14][2019] 1 Qd R 172; [2018] QCA 92.…
R v HBR [2017] QCA 193
Citation 3 (Para 2)

…reached a different view.[30] That statement was held to be erroneous by Philippides JA (with the agreement of the other judges) in Hodges .[31] [29][2017] QCA 193. [30][2017] QCA 193 at [83]. [31][2019] 1 Qd R 172 at 179; [2018] QCA 92 at [28].…
R v Davidson [2014] QCA 348
Citation 4 (Para 1)

…ablish only a significant possibility that if the new evidence had been adduced at the trial the jury would have reached a different verdict. [28][2014] QCA 348 at [34].…
R v VI [2013] QCA 218
Citation 5 (Para 13)

…t to be treated as inflexible rules strictly binding appellate courts, particularly in criminal cases .” (Footnotes omitted, emphasis added.) [16][2013] QCA 218.…
R v Spina [2012] QCA 179
Citation 6 (Para 10)

…set aside to avoid a miscarriage of justice. Frequently those two questions can be conveniently dealt with together.” (Footnotes omitted.) [12][2012] QCA 179. [13][2012] QCA 179.…
Nudd v The Queen [2006] HCA 9
Citation 7

…42 CLR 659; [1979] HCA 49, applied Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35, cited Nudd v The Queen (2006) 80 ALJR 614; (2006) 225 ALR 161; [2006] HCA 9, applied R v Condren; Ex parte Attorney-General Qld) [1991] 1 Qd R 574, cited R v Davidson [2014] QCA 348, cited R v HBR [2017] QCA 193, applied R v…
R v Ping [2005] QCA 472
Citation 8 (Para 24)

…s were committed with the purpose of inflicting severe mental suffering, as the prosecution had alleged in that case. [46][2006] 2 Qd R 69; [2005] QCA 472. [47][2006] 2 Qd R 69 at 78; [2005] QCA 472 at [35].…
R v Katsidis; ex parte A-G (Qld) [2005] QCA 229
Citation 9 (Para 14)

…e of an appeal by a person convicted”. [17][1991] 1 Qd R 574 at 579. [18][1969] Qd R 566 at 572. [19](1999) 105 A Crim R 412; [1999] QCA 148. [20][2005] QCA 229.…
TKWJ v The Queen [2002] HCA 46
Citation 10 (Para 7)

…uire or permit counsel to explain decisions of that kind.” [36](2006) 225 ALR 161 at 164; [2006] HCA 9 at [9]. [37](2002) 212 CLR 124 at 128; [2002] HCA 46 at [8].…
R v Main [1999] QCA 148
Citation 11 (Para 14)

…Court as in the case of an appeal by a person convicted”. [17][1991] 1 Qd R 574 at 579. [18][1969] Qd R 566 at 572. [19](1999) 105 A Crim R 412; [1999] QCA 148. [20][2005] QCA 229.…
Mickelberg v The Queen [1989] HCA 35
Citation 12

…, applied Lawless v The Queen (1979) 142 CLR 659; [1979] HCA 49, applied Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35, cited Nudd v The Queen (2006) 80 ALJR 614; (2006) 225 ALR 161; [2006] HCA 9, applied R v Condren; Ex parte Attorney-General Qld) [1991] 1 Qd R 574, cited R v Davidson [2014] QCA 348,…
Gallagher v The Queen [1986] HCA 26
Citation 13

…have acquitted the appellant – whether there was a miscarriage of justice Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26, applied Lawless v The Queen (1979) 142 CLR 659; [1979] HCA 49, applied Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35, cited Nudd v The Queen (2006) 80 ALJR 614; (2006) 225…
Lawless v The Queen [1979] HCA 49
Citation 14

…of justice Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26, applied Lawless v The Queen (1979) 142 CLR 659; [1979] HCA 49, applied Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35, cited Nudd v The Queen (2006) 80 ALJR 614; (2006) 225 ALR 161; [2006] HCA 9, applied R v Condren; Ex parte Attorney-…
Ratten v The Queen [1974] HCA 35
Citation 15

…plied R v Stephens [2021] QCA 127, applied R v VI [2013] QCA 218, cited R v Young (No 2) [1969] Qd R 566, cited Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35, applied Strickland v Washington 466 US 668 (1984), cited TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, applied COUNSEL: A J Glynn QC for the appellant C…
Green v The King [1939] HCA 4
Citation 16 (Para 15)

…e admissibility of further evidence: [21] “…although applicable to both civil and criminal trials, are, as said by Latham CJ (in Green v The King (1939) 61 CLR 167 at p 175) ‘related to the subject of miscarriage of justice’ and ‘should not, particularly in the Court of Criminal Appeal, be regarded as absolute or ha…
Craig v The King [1933] HCA 41
Citation 17 (Para 18)

…probative force and the nature of the evidence already adduced at the trial.[41] [40](1986) 160 CLR 392 at 402. [41]Ibid citing Craig v The Queen (1933) 49 CLR 429 at 439.…
466 US 668 466 US 668
Citation 18 (Para 20)

…ble probability is a probability sufficient to undermine confidence in the outcome.” [43](2006) 225 ALR 161 at 167; [2006] HCA 9 at [13]. [44]466 US 668 (1984) at 669.…

Legislation Cited

No legislation cited in this judgment.

CITATION:	R v SDT [2022] QCA 159
PARTIES:	R v SDT (appellant)
FILE NO/S:	CA No 61 of 2021 DC No 454 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 8 March 2021 (Dick SC DCJ)
DELIVERED ON:	30 August 2022
DELIVERED AT:	Brisbane
HEARING DATE:	19 April 2022
JUDGES:	Morrison and McMurdo JJA and Boddice J
ORDERS:	1. Allow the appeal. 2. Set aside the conviction on count 1 and order a re-trial on that count. 3. Otherwise dismiss the appeal.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – FURTHER EVIDENCE – where the appellant was convicted of seven offences including one count of torture – where the evidence of medical practitioners with whom the appellant had consulted about the complainant was not led at trial, despite the request of the appellant that this occur – where the appellant’s solicitor had this medical evidence at the time of trial but had not given it to defence counsel – where defence counsel deposed to the fact that he would have made use of the evidence at trial had he seen it – where the medical evidence is new evidence, not fresh evidence – where the Court has a “residual discretion” to set aside a conviction and order a re-trial where evidence is not fresh evidence, if to refuse to do so would result in a miscarriage of justice – whether, if received, the further evidence, when evaluated in light of the evidence adduced at trial, gives rise to a significant possibility that had the further evidence been adduced at trial, a jury acting reasonably would have acquitted the appellant – whether there was a miscarriage of justice Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26, applied Lawless v The Queen (1979) 142 CLR 659; [1979] HCA 49, applied Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35, cited Nudd v The Queen (2006) 80 ALJR 614; (2006) 225 ALR 161; [2006] HCA 9, applied R v Condren; Ex parte Attorney-General Qld) [1991] 1 Qd R 574, cited R v Davidson[2014] QCA 348, cited R v HBR[2017] QCA 193, applied R v Hodges [2019] 1 Qd R 172; [2018] QCA 92, considered R v Katsidis; Ex parte Attorney-General (Qld)[2005] QCA 229, considered R v Main; Ex parte Attorney-General (Qld) (1999) 105 A Crim R 412; [1999] QCA 148, cited R v Plomp – Unreported – CCA 28.8.62, cited R v Spina[2012] QCA 179, applied R v Stephens[2021] QCA 127, applied R v VI[2013] QCA 218, cited R v Young (No 2) [1969] Qd R 566, cited Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35, applied Strickland v Washington 466 US 668 (1984), cited TKWJ v…