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

Summary Notes

Appeal against Conviction – 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 – where the prosecution case depended upon the evidence of the complainant – where the complainant had told police officers that as he fled the property, he was drunk – where his evidence at the trial was that on that evening (the evening following that on which the offence was committed) he had had nothing to drink – where the trial judge directed the jury, there were therefore many reasons for the jury to approach the complainant’s evidence with special care – where not only was there the long delay from the time of the alleged offence, the complainant’s mental illnesses created a particular risk that his evidence “might be a result of delusions, rather than based on reality”, as his Honour described it – where, however, the reliability of the complainant’s evidence was enhanced by his ability to recall things about his visit to the property which appeared to be true according to other evidence – where this is a case where the long passage of time from the events in question and the complainant’s history of mental illness provide a basis for doubting the appellant’s guilt of this offence – where this is also a case where the jury’s advantage in seeing and hearing the complainant’s evidence is capable of resolving any doubt which this court might experience – where the appellant’s argument that it was not open to the jury to find that the appellant was guilty of this offence is ultimately unpersuasive – 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 – where in the present case, the request to hear part of the address by defence counsel evidenced at least the possibility of an imperfect understanding by the jury, or some of the jury, about the defence arguments – where the judge indicated to the jury that, in his view, they might not need to hear more than the complainant’s evidence, however his Honour did not preclude the possibility of replaying that part of the address which the jury had requested – where what he said to the jury could well have been understood by them as indicating that it was the evidence of the complainant upon which they should focus and that they might be able to reach their verdicts without hearing again the defence argument – where there is a real possibility that the jury was influenced by this statement by the judge to send a further note, saying that they did not wish to hear the summary of the defence case – where the possibility remains that the jury reached its verdict with that imperfect understanding, by at least some of the jury, of the defence case – where there was a miscarriage of justice – 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 – where in the absence of any evidence from the appellant’s trial counsel, this court is left to speculate about C’s ability and willingness to provide evidence helpful to the appellant’s case, as of the third day of the trial – where the fact that an adjournment was not sought indicates that C was not a willing or helpful witness by that stage, rather than indicating any failure by the lawyers to consider a request for a further adjournment of the trial – where on the present evidence, the appellant’s trial counsel made a forensic decision which is not proved to have lacked a rational basis – where no miscarriage of justice is established by this ground of appeal. Allow the appeal. Set aside verdict of guilty. Order a retrial on count 2 of the indictment.