SUPREME COURT OF QUEENSLAND
CITATION:
R v Silcock [2022] QCA 234
PARTIES:
R
v
SILCOCK, Marc Charles
(appellant)FILE NOS:
CA No 185 of 2022
DC No 403 of 2019DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
District Court at Brisbane – Pre-Trial Ruling: [2021] QDCPR 29 (Byrne QC DCJ); Pre-Trial Ruling: [2022] QDCPR 6 (Byrne QC DCJ); Date of Conviction: 2 September 2022 (Farr SC DCJ)
DELIVERED ON:
25 November 2022
DELIVERED AT:
Brisbane
HEARING DATE:
7 November 2022
JUDGES:
Bowskill CJ and Bond and Flanagan JJA
ORDERS: 1. The appeal is allowed.
2. The convictions and verdicts of 2 September 2022 in respect of counts 2, 3 and 4 on indictment No 403 of 2019 are set aside.
3. A re-trial is ordered.
4. Orders 2, 3 and 4 made on 11 May 2021 and Order 1 made on 11 February 2022 by Byrne QC DCJ are set aside.
5. Pursuant to s 21A(6)(b) of the Evidence Act 1977 (Qld) it is ordered that the video recording of the complainant’s cross-examination conducted on 17 October 2019 is not admissible at any re-trial.
6. A further video recording of the complainant’s cross-examination for any re-trial is to be conducted pursuant to s 21A(2) of the Evidence Act 1977 (Qld) on a date to be fixed.
CATCHWORDS:
APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – IN GENERAL – MISCARRIAGE OF JUSTICE – IN GENERAL – use of privileged information – fair trial – where the Crown prosecutor knew the defence instructions – where the appellant, on a prior appeal, waived legal privilege by putting onto record their instructions to legal representatives – where the appellant now appeals his conviction on the ground that the re-trial was unfair and therefore occasioned a miscarriage of justice – where the appellant argues the Crown was unfairly advantaged by having knowledge of defence instructions – where the prosecutor declined to recuse themselves – where the prosecutor declined the appellant’s request to not make use of the defence instructions – where the prosecution’s knowledge of the defence case confined the appellant’s strategies at the re-trial – where the prosecution was legally in possession of the defence instructions – where the appellant did not reveal their instructions due to any legal compulsion – whether the trial was unfair and a miscarriage of justice occasioned by the prosecution having lawful possession of the defence’s instructions
EVIDENCE – ADDUCING EVIDENCE – WITNESSES – GIVING EVIDENCE – CROSS-EXAMINATION – GENERALLY – special witness provisions – pre-recorded evidence – a complainant’s evidence in a re-trial – balancing the interest of complainants in not having to give further evidence with the right of the defendant to a fair trial – where the complainant was a special witness – where the complainant gave evidence by videorecording – where parts of the complainant’s cross-examination were removed on a re-trial, as an appeal determined the defence questions were contrary to defence instructions – where an…
Continue reading R v Silcock
Sign in free to access the full text
- AGLC
- Content removed [2022] QCA 234
- Case
- [2022] QCA 234
- Decision Date
CaseChat Overview and Summary
The Court of Appeal considered the appellant's contention that the Crown's possession of privileged information about his defence strategy unfairly prejudiced his trial. The court found that the appellant had waived his legal privilege by disclosing his instructions to his legal representatives, thus legally placing the Crown in possession of that information. However, the court acknowledged the unfairness of the situation, but held that the appellant had not been legally compelled to disclose his instructions. Regarding the complainant's evidence, the court noted that the complainant was a special witness, and her cross-examination had been pre-recorded and used in the re-trial. Despite the appellant's argument that the refusal to allow a fresh cross-examination was an error, the court determined that the decision was not wrong in law, as the extensive nature of the initial cross-examination was considered. The court also examined the inconsistency in the jury's verdicts, concluding that while there were pervasive doubts about the complainant's reliability, the verdicts were not unreasonable or inconsistent.
In light of the above, the Court of Appeal allowed the appeal, set aside the convictions and verdicts on counts 2, 3, and 4, and ordered a re-trial. The court further ordered that the previous video recording of the complainant's cross-examination would not be admissible in any re-trial and mandated that a new video recording of the complainant's cross-examination be conducted according to the provisions of the Evidence Act 1977 (Qld). The court also set aside previous orders made by the District Court Judge.
Orders
Orders of the court
1. The appeal is allowed.
2. The convictions and verdicts of 2 September 2022 in respect of counts 2, 3 and 4 on indictment No 403 of 2019 are set aside.
3. A re-trial is ordered.
4. Orders 2, 3 and 4 made on 11 May 2021 and Order 1 made on 11 February 2022 by Byrne QC DCJ are set aside.
5. Pursuant to s 21A(6)(b) of the Evidence Act 1977 (Qld) it is ordered that the video recording of the complainant’s cross-examination conducted on 17 October 2019 is not admissible at any re-trial.
6. A further video recording of the complainant’s cross-examination for any re-trial is to be conducted pursuant to s 21A(2) of the Evidence Act 1977 (Qld) on a date to be fixed.
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.