R v. Shaw - [2007] QCA 231

SUPREME COURT OF QUEENSLAND

CITATION:

R v Shaw [2007] QCA 231

PARTIES:

R
v
SHAW, Roger
(appellant)

FILE NO/S:

CA No 343 of 2006
DC No 649 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED ON:

20 July 2007

DELIVERED AT:

Brisbane

HEARING DATE:

14 May 2007

JUDGES:

McMurdo P, Jerrard JA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where the appellant was convicted by a jury of one count of dangerous driving of a motor vehicle causing death when being adversely affected by alcohol – where on the second day of trial a juror became ill – where the medical certificate issued in respect of the ill juror described the juror as unable to attend the trial for both that day and the next – where submissions were heard as to whether the trial judge ought to continue with 11 jurors – whether sufficient circumstances existed for the exercise of the discretion in favour of continuing the trial

Jury Act 1995 (Qld), s 56, s 57

Brownlee v The Queen (2001) 207 CLR 278, applied
R v Hutchings[2006] QCA 219, CA No 345 of 2005, 21June 2006, applied
Wu v The Queen (1999) 199 CLR 99, applied

COUNSEL:

M J Byrne QC for the appellant
M R Byrne for the respondent

SOLICITORS:

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

MCMURDO P: Jerrard JA has set out the relevant facts and issues. I agree with his Honour's reasons for dismissing this appeal but wish to add the following observations.

The appellant, having pleaded not guilty, was entitled to a trial by jury (s 604(1) Criminal Code1899 (Qld)). The jury for a criminal trial consists of 12 persons (s 33 Jury Act 1995 (Qld)). Under s 56 Jury Act a judge may discharge a juror without discharging the whole jury if in the judge's opinion the juror becomes incapable of continuing to act as a juror. The learned primary judge discharged the ill juror under s 56. No complaint is made about that part of his Honour's order. His Honour then directed under s 57 Jury Act (there being no reserve juror) that the trial continue with the remaining 11 jurors. It is this order that is at the heart of the present appeal.

The order under s 57 was made in the morning of the third day of the trial. The jury of 11 jurors retired to consider their verdict at 11.05 am on the fifth day of the trial There were no applications for redirections prior to the return of the guilty verdict at 3.21 pm that day.

In enacting s 57, the legislature clearly intended that judges…

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. Shaw

Details

AGLC: R v Shaw [2007] QCA 231
Case: [2007] QCA 231
Decision Date: 20 July 2007

CaseChat Overview and Summary

The appellant was convicted by a jury of one count of dangerous driving of a motor vehicle causing death when being adversely affected by alcohol. The appellant appealed against the conviction on the basis that the trial was tainted by a miscarriage of justice. On the second day of trial, a juror became ill and provided a medical certificate stating the juror would be unable to attend the trial for both that day and the next. Submissions were heard as to whether the trial judge ought to continue with 11 jurors. The court had to determine whether sufficient circumstances existed for the exercise of the discretion in favour of continuing the trial with 11 jurors.

The court held that a trial judge is not powerless in the face of a juror's absence. In exercising the discretion to continue the trial with 11 jurors, the trial judge must be satisfied that the trial can proceed fairly to the accused and justly for the community. The court found that the trial judge was satisfied that the trial could proceed fairly and justly. The appellant did not satisfy the court that the trial was unfair or that the trial judge's exercise of the discretion was wrong. The appeal was dismissed.

The court found that the trial judge exercised his discretion correctly and that the conviction should stand. The appellant's appeal was dismissed.

Orders

Orders of the court

Appeal 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 Shaw [2007] QCA 231
PARTIES:	R v SHAW, Roger (appellant)
FILE NO/S:	CA No 343 of 2006 DC No 649 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Beenleigh
DELIVERED ON:	20 July 2007
DELIVERED AT:	Brisbane
HEARING DATE:	14 May 2007
JUDGES:	McMurdo P, Jerrard JA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where the appellant was convicted by a jury of one count of dangerous driving of a motor vehicle causing death when being adversely affected by alcohol – where on the second day of trial a juror became ill – where the medical certificate issued in respect of the ill juror described the juror as unable to attend the trial for both that day and the next – where submissions were heard as to whether the trial judge ought to continue with 11 jurors – whether sufficient circumstances existed for the exercise of the discretion in favour of continuing the trial Jury Act 1995 (Qld), s 56, s 57 Brownlee v The Queen (2001) 207 CLR 278, applied R v Hutchings[2006] QCA 219, CA No 345 of 2005, 21June 2006, applied Wu v The Queen (1999) 199 CLR 99, applied
COUNSEL:	M J Byrne QC for the appellant M R Byrne for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent