R v TQ - [2007] QCA 255

SUPREME COURT OF QUEENSLAND

CITATION:

R v TQ [2007] QCA 255

PARTIES:

R
v
TQ
(appellant)

FILE NO/S:

CA No 36 of 2007
DC No 255 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Toowoomba

DELIVERED ON:

8 August 2007

DELIVERED AT:

Brisbane

HEARING DATE:

10 July 2007

JUDGES:

Williams and Jerrard JJA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeal allowed
2. Re-trial on counts 4 and 5 (indecent treatment of a child under 16, as a guardian)

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where the trial judge had permitted the trial to continue in the absence of the accused during the replaying of an affected child witnesses’ evidence-in-chief and pre-recorded cross-examination – whether this constituted a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE – MISDIRECTION AND NON-DIRECTION – where the trial judge did not remind the jurors that they ought not give any extra weight to particular evidence having heard it a second time – whether a warning to the jury was necessary

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – where a second s 93A Evidence Act 1977 (Qld) statement was made – where no direction was requested by defence counsel at trial for a direction pursuant to s 102 of the Evidence Act 1977 (Qld) – where directions were given pursuant to s 21AW(2)(c) of the Evidence Act 1977 (Qld) – whether directions should have been given pursuant to s 102

Evidence Act 1977 (Qld), s 21AW(2)(c), s 93A, s 102

R v DAJ[2005] QCA 40; CA No 231 of 2004, 28 February 2005, applied
R vGT[2005] QCA 478; CA No 69 of 2005, 23 December 2005, distinguished
R v H [1999] 2 Qd R 283, applied
R v K; ex parte A-G (Qld) [2002] QCA 260; CA Nos 24 and 67 of 2002, 30 July 2002, applied

COUNSEL:

R A East for the appellant
R G Martin SC for the respondent

SOLICITORS:

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

WILLIAMS JA: I have had the advantage of reading the reasons for judgment of Jerrard JA and I agree with them.

There is, however, one aspect of the reasoning therein which I would emphasise. The jury, perhaps surprisingly, asked for the evidence of CT (the video of her interview with police in November 2004 and her video recorded cross-examination in August 2006) to be replayed after they had retired to consider their verdict. Significantly CT's…

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 TQ

Details

AGLC: R v TQ [2007] QCA 255
Case: [2007] QCA 255
Decision Date: 8 August 2007

CaseChat Overview and Summary

The appeal by TQ against his convictions on three counts of indecent treatment of a child under 16 years, as a guardian, was heard by the Queensland Court of Appeal. The appellant argued that the trial judge's decision to allow the trial to proceed in his absence during the replaying of an affected child witness's evidence-in-chief and pre-recorded cross-examination amounted to a miscarriage of justice. Additionally, he contended that the trial judge should have warned the jury against giving undue weight to the evidence having heard it a second time, and that the absence of a direction pursuant to section 102 of the Evidence Act 1977 (Qld) constituted a misdirection.

The Court of Appeal considered the implications of the trial judge's actions and the legal principles surrounding the presentation of evidence to a jury. It was determined that the absence of the accused during the replaying of the child witness's evidence was indeed a miscarriage of justice, as it deprived the appellant of the opportunity to challenge the evidence in real-time. Furthermore, the Court held that the trial judge should have warned the jury against attaching undue significance to the repeated evidence, as it was necessary to ensure the fairness of the trial. The Court also found that the failure to provide a direction pursuant to section 102 of the Evidence Act 1977 (Qld) was a misdirection, as it was an essential step in safeguarding the appellant's right to a fair trial.

As a result of these findings, the appeal was allowed, and a re-trial was ordered on counts 4 and 5 of the indictment, concerning the indecent treatment of a child under 16 years, as a guardian. The Court's decision underscores the importance of adhering to legal principles and procedural safeguards to ensure the integrity of criminal trials and protect the rights of the accused.

Orders

Orders of the court

1. Appeal allowed

2. Re-trial on counts 4 and 5 (indecent treatment of a child under 16, as a guardian)

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v TQ [2007] QCA 255
PARTIES:	R v TQ (appellant)
FILE NO/S:	CA No 36 of 2007 DC No 255 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Toowoomba
DELIVERED ON:	8 August 2007
DELIVERED AT:	Brisbane
HEARING DATE:	10 July 2007
JUDGES:	Williams and Jerrard JJA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal allowed 2. Re-trial on counts 4 and 5 (indecent treatment of a child under 16, as a guardian)
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where the trial judge had permitted the trial to continue in the absence of the accused during the replaying of an affected child witnesses’ evidence-in-chief and pre-recorded cross-examination – whether this constituted a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE – MISDIRECTION AND NON-DIRECTION – where the trial judge did not remind the jurors that they ought not give any extra weight to particular evidence having heard it a second time – whether a warning to the jury was necessary CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – where a second s 93A Evidence Act 1977 (Qld) statement was made – where no direction was requested by defence counsel at trial for a direction pursuant to s 102 of the Evidence Act 1977 (Qld) – where directions were given pursuant to s 21AW(2)(c) of the Evidence Act 1977 (Qld) – whether directions should have been given pursuant to s 102 Evidence Act 1977 (Qld), s 21AW(2)(c), s 93A, s 102 R v DAJ[2005] QCA 40; CA No 231 of 2004, 28 February 2005, applied R vGT[2005] QCA 478; CA No 69 of 2005, 23 December 2005, distinguished R v H [1999] 2 Qd R 283, applied R v K; ex parte A-G (Qld) [2002] QCA 260; CA Nos 24 and 67 of 2002, 30 July 2002, applied
COUNSEL:	R A East for the appellant R G Martin SC for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent