R v Storey - [2021] QCA 265

SUPREME COURT OF QUEENSLAND

CITATION:

R v Storey [2021] QCA 265

PARTIES:

R
v
STOREY, Robert Mark
(appellant)

FILE NO/S:

CA No 259 of 2020
SC No 884 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 1 December 2020 (Callaghan J)

DELIVERED ON:

3 December 2021

DELIVERED AT:

Brisbane

HEARING DATE:

13 August 2021

JUDGES:

Fraser and McMurdo and Mullins JJA

ORDERS:

1.   Appeal allowed.

2.   Set aside the conviction on each count.

3.   The appellant be retried on each count.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where a juror was discharged during the trial because they could not remain impartial – where a reserve juror took their place – where, after deliberations had commenced, another juror (juror 4) had a recollection which was such that he may have been a witness to one of the charged acts – where juror 4 told juror 2 he had had a recollection which could be useful to the jury – where juror 2 immediately told juror 4 to speak to the bailiff – where juror 4 was discharged – where defence counsel applied for the discharge of juror 2 and a declaration that there had been a mistrial – whether the decision not to discharge the jury resulted in a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – where the appellant was convicted of a number of sexual offences, one count of assault occasioning bodily harm and one count of supplying a dangerous drug to a minor – where the assault occasioning bodily harm was said to have left a scar on the complainant – where the complainant had a history of fighting with other children in the neighbourhood – where another child, T, gave evidence the appellant had approached another child, T, for the purpose of asking T to give evidence that T had caused the scar on the complainant – where the prosecution argued that this evidenced post-offence consciousness of guilt – where the appellant contends that there was further evidence which suggested that the evidence of T was neutral – whether there was a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the jury asked to view all of the child complainant’s pre-recorded evidence again – where the trial judge made arrangements to remind the jury as to aspects of the cross-examination and give a further redirection – where, part-way through viewing the evidence, the jury informed the judge that they had reached a verdict – where the judge gave a shorter redirection than intended and did remind the jury of aspects of the cross-examination – whether a miscarriage of justice occurred

Jury Act 1995 (Qld), s 57

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 Storey

Details

AGLC: R v Storey [2021] QCA 265
Case: [2021] QCA 265
Decision Date: 3 December 2021

CaseChat Overview and Summary

The appeal before the court concerned the conviction of the appellant, Storey, who was found guilty of multiple sexual offences, an assault occasioning bodily harm, and the supply of a dangerous drug to a minor. The trial had several irregularities, including the discharge of a juror during the trial and the subsequent discharge of another juror after deliberations had commenced due to a recollection of potentially witnessing one of the charged acts. The defence counsel sought to discharge the remaining juror and declare a mistrial due to these irregularities, but the trial judge declined to do so. The appellant now appeals, contending that the trial judge’s refusal to discharge the jury resulted in a miscarriage of justice. Additionally, the appellant argues that there was insufficient evidence to support the conviction for assault occasioning bodily harm, as the complainant had a history of fighting and there was evidence that the scar could have resulted from those fights.

The court was required to determine whether the irregularities during the trial amounted to a miscarriage of justice. The court also needed to assess whether the evidence was sufficient to support the conviction for the assault occasioning bodily harm. Furthermore, the court had to examine whether the trial judge’s partial redirection to the jury due to the jury’s early verdict constituted a miscarriage of justice.

The court found that the irregularities, including the discharge of jurors, did not amount to a miscarriage of justice as the remaining juror was impartial, and the trial judge’s decision not to discharge the jury was not an error. The court also held that there was sufficient evidence to support the conviction for assault occasioning bodily harm, despite the complainant's history of fighting. Lastly, the court concluded that the partial redirection by the trial judge did not result in a miscarriage of justice, as the jury had already reached a verdict before the redirection was completed. The court found that the appellant’s appeal was successful and ordered the conviction on each count to be set aside, with the appellant to be retried on each count.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the conviction on each count.

3. The appellant be retried on each count.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Storey [2021] QCA 265
PARTIES:	R v STOREY, Robert Mark (appellant)
FILE NO/S:	CA No 259 of 2020 SC No 884 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Conviction: 1 December 2020 (Callaghan J)
DELIVERED ON:	3 December 2021
DELIVERED AT:	Brisbane
HEARING DATE:	13 August 2021
JUDGES:	Fraser and McMurdo and Mullins JJA
ORDERS:	1. Appeal allowed. 2. Set aside the conviction on each count. 3. The appellant be retried on each count.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where a juror was discharged during the trial because they could not remain impartial – where a reserve juror took their place – where, after deliberations had commenced, another juror (juror 4) had a recollection which was such that he may have been a witness to one of the charged acts – where juror 4 told juror 2 he had had a recollection which could be useful to the jury – where juror 2 immediately told juror 4 to speak to the bailiff – where juror 4 was discharged – where defence counsel applied for the discharge of juror 2 and a declaration that there had been a mistrial – whether the decision not to discharge the jury resulted in a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – where the appellant was convicted of a number of sexual offences, one count of assault occasioning bodily harm and one count of supplying a dangerous drug to a minor – where the assault occasioning bodily harm was said to have left a scar on the complainant – where the complainant had a history of fighting with other children in the neighbourhood – where another child, T, gave evidence the appellant had approached another child, T, for the purpose of asking T to give evidence that T had caused the scar on the complainant – where the prosecution argued that this evidenced post-offence consciousness of guilt – where the appellant contends that there was further evidence which suggested that the evidence of T was neutral – whether there was a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the jury asked to view all of the child complainant’s pre-recorded evidence again – where the trial judge made arrangements to remind the jury as to aspects of the cross-examination and give a further redirection – where, part-way through viewing the evidence, the jury informed the judge that they had reached a verdict – where the judge gave a shorter redirection than intended and did remind the jury of aspects of the cross-examination – whether a miscarriage of justice occurred Jury Act 1995 (Qld), s 57