R v Shea

[2000] QCA 306

[2000] QCA 306

COURT OF APPEAL

PINCUS JA
THOMAS JA
CHESTERMAN J

CA No 130 of 2000

THE QUEEN

v.

IAN JAMES SHEA  Appellant

BRISBANE

..DATE 01/08/2000

JUDGMENT

PINCUS JA: The appellant was charged with three offences, two indecent dealing and one exposing the complainant child to an indecent act.  All these three alleged offences are said to have occurred on a single evening, on a date unknown, between December 1997 and June 1998.

The complainant child gave evidence-in-chief by tender of a statement under section 93A of the Evidence Act 1977. The allegations were, although closely connected in time and place, of offences of a different character.

The first count was an allegation that the appellant rubbed his penis up against the complainant’s vagina while the child and the appellant were in the complainant’s bedroom.  The complainant alleged that, whilst fully clothed, she was told by the appellant to get on her hands and knees and he then got behind her and rubbed his penis on her vagina, the appellant being at that time naked from the waist down. 

The second count involved an allegation that immediately following the commission of the acts alleged in count 1 the appellant asked the complainant to lick his penis. She did not do so.  He then masturbated in front of the complainant resulting in ejaculation.

The third count followed very shortly afterwards in another room in the same house.  The allegation was that the appellant put his finger into the child’s vagina while her pants and underpants were pulled down. 

The jury convicted on the second count and failed to agree on counts 1 and 3. The primary submission made by Mr Gaffney for the appellant is that in the whole of the circumstances one could not regard the conviction on count 2 as safe and that therefore it should not stand.  Mr Gaffney points out that the offences occurred in a household which, at the relevant time, contained relations of the complainant who were in the vicinity and the distances involved were quite short;  so that if any of the offences was committed it was one the commission of which must have been very vulnerable to discovery.

There are other lesser circumstances which are relied on by Mr Gaffney as throwing doubt upon the validity of the complainants version, one of which was that there was some evidence that the complainant had been exposed to depiction on the television of an incident somewhat akin to that involved in count 2.

What happened was that the jury, after fairly brief evidence was given, retired and they stayed out for a long time.  They retired shortly after noon on 12 April 2000. About half past 4 they sought redirections on a number of matters, one of which was the TV program I have just mentioned and they were locked up at 8pm. About noon the following day the jury sought further redirection and that is set out at page 229 line 42.

The Judge said, “I have received your note which reads ‘Judge’s Rules regarding separation of charges, clearer ruling.’”  His Honour went on to refer to what he had said in the summing-up which was that, although there were three trials taking place at once, the jury had to consider the evidence relating to each count separately.  His Honour also mentioned that he had said in the summing-up that he could see no basis which would justify different verdicts being returned.  He added that ultimately what verdicts are returned must always be a matter for the jury and the jury alone and went on to say that the jury were not bound to accept anything he said about the facts.

Now, that occurred just after noon.  The jury went out again at 12.11pm and then there was some discussion in Court.  The
jury came back at 12.19pm, that is eight minutes later, and they then convicted on count 2 and informed the Judge that they could not agree in respect of the other two counts.

The argument which Mr Gaffney has advanced is that the circumstances suggest some sort of compromise being reached. According to his submission, there was room for doubt about count 2 in the particular circumstance that, alone of the three counts, that was one where the complainant had some basis for copying or being inspired by something which she had seen on the television.

More generally, the argument is that there was not any basis for discriminating between the three counts, particularly 1 and 2 which followed immediately upon one another.  It is, indeed, a little difficult to see how the jury could have been prepared to accept what was said about count 2 but not about count 1.

In his helpful submission, Mr Byrne QC for the Crown has partially agreed with what has been submitted on the other side.  His submission accepts that there were indications of compromise. Mr Byrne identifies three:  the judge’s indication to the jury that there was no justification for different verdicts, the retirement of the jury for a long time before finally questioning those indications and the fact that a single verdict was returned eight minutes after the Judge’s final directions.

Mr Byrne, in effect, concedes that the verdict is redolent of compromise.  The only question which would ordinarily remain is whether or not, count 2 being necessarily set aside as unsafe, the appellant should be tried again on any or all of the three counts.  It appears to me that it is unnecessary to discuss the question of a new trial in any detail, because Mr Byrne has informed us that the appellant’s representatives were told that there would be no application for a new trial if this appeal succeeded and he does not resile from that.

Counsel appear to be agreed that the circumstances attending the delivery of the verdicts make the verdict on count 2, against the background of the evidence, appear to be unsafe.  I agree with the view which both counsel have put forward as to that matter and, for the reason I have mentioned, I do not propose to discuss the propriety or otherwise of the grant of a new trial other than to mention that the trial which I have discussed was, in fact, the second trial, the jury having failed to agree at the first trial of these three counts.

The orders which I would then propose are that the appeal be allowed, the conviction on count 2 set aside and that there be no new trial.

THOMAS JA:  I agree.  I would add that there have now been two full trials on all three counts and on each occasion the trial has miscarried.  In addition the appellant has been in prison for about three and a half months pending the hearing of the present appeal.  These factors also support the decision that there should be no re-trial, and I simply indicate my opinion that the attitude taken by Mr Byrne QC on behalf of the Crown in this respect is a perfectly reasonable one.

CHESTERMAN J:  I agree with the orders proposed and the reasons given by Mr Justice Pincus and by Justice Thomas. 

PINCUS JA:  The orders will be as I have indicated.