Queensland’s highest court has allowed an appeal by a man convicted of serious sex offences, finding the man’s trial was “distorted or unbalanced”.
The Court of Appeal (COA) in Brisbane yesterday published its reasons for ordering the retrial of a man – identifiable only as SDL – convicted by a Central Queensland District Court jury in August last year for maintaining a sexual relationship with his stepdaughter.
A Rockhampton jury had been told SDL allegedly maintained the illegal relationship with the girl – then aged between nine and 15 – over a six-year period from May 2011 to May 2017.
SDL appealed against his conviction on the grounds of errors made by the judge during the trial – including whether there had been a failure to warn the jury about the risk of giving disproportionate weight to the evidence given by the child complainant, over that given by SDL.
Justice Jean Dalton, in a nine-page written decision, said: “The Crown (prosecution) case largely depended upon whether or not the jury accepted the evidence of the (child) complainant.”
She said during the trial the jury was shown recorded video footage of the child’s complaint about the alleged offending, recorded by police in November 2017, and then the pre-recorded evidence prepared for trial which ran for 26 minutes.
The jury also heard evidence from the child’s mother and at the conclusion of the prosecution case, SDL elected to give evidence himself in defence of the charge to which he had pleaded not guilty.
At 10.17am on 23 August 2021, the jury retired to consider its verdict. At 12.10pm the court was reconvened after the jury sent a note to the judge asking if they could re-watch the child’s initial interview with police.
Justice Dalton noted: “The jury had lunch at about 1.10pm and returned to the courtroom at 2.15pm. They watched the remainder of the recordings of the complainant’s evidence.
“Then the trial judge again gave the standard direction about the pre-record process.
“At 3.30pm the jury again retired to consider their verdict. At 4.15pm the court resumed because the jury had sent a note saying they could not come to agreement ‘in regards to the guilt or innocence of the defendant’.”
Justice Dalton said the jury were then given a ‘Black direction’ – in which a judge asks jurors to give further consideration of the evidence in a final attempt to reach a unanimous verdict – at 4.20pm.
“At 5.30pm the judge let the jury go home for the day and at 1.15pm on the following day, Tuesday, the jury returned with a verdict of guilty.
“(SDL’s) appeal is on the basis that a miscarriage of justice occurred because, after the complainant’s (child’s) evidence was replayed, the trial judge failed to remind the jury of the details of (SDL’s) evidence, and failed to warn the jury about the risk of giving disproportionate weight to the complainant’s (child’s) evidence because it was played to them twice.”
Justice Dalton, unanimously supported by COA President Justice Debra Mullins and Justice David Boddice, allowed SDL’s appeal, set aside his conviction and ordered he be granted a fresh trial in the District Court.
In her reasons for granting the appeal, Justice Dalton said: “As it was, the trial was distorted or unbalanced because nearly all the Crown case was replayed to the jury without any reminder of the defence case.
“I accept the submission on behalf of (SDL) that the fact that (his) evidence had been given on Friday, and that a weekend intervened before the complainant’s evidence was replayed to the jury, exaggerated the effect of this.
“However, my view would have been the same even if the weekend had not intervened. I also accept that the jury’s return to the courtroom to indicate they could not agree, soon after seeing the complainant’s evidence replayed, is an indication that efforts to balance the trial after the complainant’s evidence was replayed might well have made a difference to the verdict; that is, matters were finely balanced.
“Again however, my conclusion would be the same even had there not been this added factor.
“Lastly, I record that at times the prosecution came close to submitting that, although the (SDL) gave evidence, he did little more than deny the occurrence of the indecent assaults alleged, so that a failure to remind the jury of this did not occasion a miscarriage of justice. I would reject such a position on the facts here.
“If the judge decided to replay the entirety of the complainant’s evidence, the judge ought to have reminded the jury that (SDL) gave evidence; that they had a chance to see, hear and assess him in the box, and ought to have reminded the jury of the matters which were the subject of (SDL’s) evidence.
“That is, the judge needed to remind the jury, in a real way, about the defence case.”
Read the COA decision.
What is a Black direction?