Court of Appeal

R v Lyall [2016] QCA 350 (16/155) Morrison and Philippides and Philip McMurdo JJA 23 December 2016

Full-text: QCA16-350.pdf

Catchwords

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted by jury of one count of sodomy – where the offence was said to have occurred on a property owned by the appellant in 1982 or 1983 – where the complainant’s evidence of the sodomy or other sexual misconduct was not supported by other evidence but there was substantial support for the surrounding circumstances, including the complainant’s presence at the appellant’s property – where the complainant had a history of drug abuse and mental illness – where the appellant contends the verdict was unsafe and unsatisfactory – whether on the whole of the evidence the verdict of guilty can be supported

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant was convicted by jury of one count of sodomy – where on the second day of deliberations the jury sent a note to the trial judge asking for a summary of the defence’s closing address – where whilst discussing the request with counsel the trial judge received a second note asking to rehear the appellant’s evidence in relation to the offence – where after discussing the second request with counsel the complainant’s evidence was read back to the jury – where the trial judge then instructed the jury to consider the complainant’s evidence and reconsider if they still required the summary of the defence’s closing – where after retiring for lunch the jury sent a third note saying they no longer required the summary of the defence’s closing – where, after receiving a Black Direction, the jury returned a verdict of guilty – where the appellant contends a miscarriage of justice occurred because the jury were not permitted to hear the defence summary and the trial judge’s statements suggested they may not need to hear the defence summary after rehearing the complainant’s evidence – whether there was a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – where the appellant was convicted by jury of one count of sodomy – where a co-accused, C, was discharged on the first afternoon of the trial – where the appellant intended to call C as a witness in his defence – where on the second day of trial defence counsel was granted an adjournment to the following day before opening his case to determine if C would be in a position to give evidence – where on the third day of trial defence counsel informed the appellant that C was unwell and would not give evidence – where the appellant was not aware he could compel C’s attendance to give evidence – where the appellant contends a miscarriage of justice occurred because he lost the potential benefit of C’s evidence by his solicitor and counsel not advising as to the possibility of adjourning the trial and compelling C’s attendance – whether there was a miscarriage of justice