The Queen v Barry[1997] QCA 208

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 105 of 1997

Brisbane

[R. v. Barry]

THE QUEEN

v.

ANTHONY LIONEL BARRY

(Applicant) Appellant

Fitzgerald P.

Moynihan J.

Dowsett J.

Judgment delivered 22 July 1997

Judgment of the Court.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

APPEAL AGAINST CONVICTION DISMISSED.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 22 July 1997

The appellant has appealed against his conviction in the District Court at Townsville on 21 February 1997 of offences of rape and unlawful assault on 16 January 1996 at Palm Island.  The complainant in each case was Ms Lisa Marice Barry.  The notice of appeal also included an application for leave to appeal against sentence which, although not formally abandoned, was not pursued.  The sentence imposed upon the appellant, imprisonment for nine years, is not obviously outside the exercise of a sound sentencing discretion, and the application for leave to appeal against sentence should be refused.

The notice of appeal included three grounds, but the written outline of submissions on behalf of the appellant stated that no argument was advanced in support of grounds 2 and 3.  Nor was any oral argument addressed in relation to those grounds, which the Court does not need to consider further.

The sole point pursued on behalf of the appellant is that, in the course of her cross-examination by counsel representing the appellant at his trial, Ms Barry made  statements which were not responsive to questions in which she said:

“Ask who else he had?  You ask him.  Ask him about his own little niece he touched on Palm Island.  I know what happened.  Ask him.  He - he raped - she - threatened ...”

The next question and answer was as follows:

“Witness, if you can just - if you can just focus on what we’re here to talk about?

I don’t think - he not the only one who fuck - even rape.”

An application was made to discharge the jury which was refused, and the jury was directed to disregard those statements by Ms Barry. 

In this Court, the submission made on behalf of the appellant was that Ms Barry’s statements were inadmissible and highly prejudicial, especially having regard to the allegation by Ms Barry that he had also raped his niece when the charges on which he was being tried included a charge that he had raped Ms Barry.  It was pointed out that the jury was substantially concerned with a credibility contest between Ms Barry and the appellant, who gave evidence at his trial, and that her allegation that he had previously engaged in a similar offence would have made the appellant’s denial of the offences with which he was charged less credible and less likely to raise a doubt in the minds of the jury.  It was therefore submitted that the directions of the trial judge that the jury ignore the inadmissible evidence were, in the circumstances, “insufficient to enable an appellate court to conclude that no miscarriage of justice has occurred”.  A new trial was sought.

In the course of argument, we were referred to a passage in the judgment of Deane J. in Webb v. R.^[1] in which his Honour stated “... it cannot be said that a miscarriage of justice resulted from the inadvertent disclosure to the jury that Ms Hay had been in prison”, although that disclosure was a serious irregularity.  His Honour went on:

“In some cases, such a disclosure would clearly give rise to a situation in which an application for the discharge of a jury would necessarily succeed.  In the overall context of the present trial, however, it obviously played no significant part at all in the ultimate verdict and no miscarriage of justice resulted from it.”

Although his Honour was in a minority in favour of allowing the appeal, the passage quoted from his judgment related to a matter on which he was in agreement with the majority of the court.

Toohey J., with whom Mason C.J. and McHugh J. in a joint judgment agreed so far as presently material, said at p. 90:

“Where evidence prejudicial to an accused is elicited inadvertently, it is a matter for the trial judge to decide whether the jury should be discharged.  If the jury are not discharged, on appeal the question for determination is as mentioned earlier in these reasons.  That is, the appeal ‘is not against the failure to discharge the jury but against the conviction’ [Maric v. The Queen (1978), 52 A.L.J.R. 631, at p. 634; 20 A.L.R. 513, at p. 520, per Gibbs J.].  The question then is whether a substantial miscarriage of justice has occurred.”

After reference to the judgment of Mason C.J. and Toohey J. in R. v. Glennon,^[2] Toohey J. continued:

“... the question on appeal is whether, in the present case, Hay suffered a substantial miscarriage of justice by reason of the inadvertent disclosure that she had been in prison.”

His Honour went on to hold that there had been no substantial miscarriage of justice.

It is our understanding that, when inadmissible material (including inadmissible evidence) is placed before a jury, an appellate court is entitled to dismiss the appeal pursuant to sub-s. 668E(1A) of the Criminal Code only if satisfied that no substantial miscarriage of justice has occurred.  It is for the prosecution to establish that there has been no substantial miscarriage of justice, not for the appellant who has demonstrated the irregularity to show that no substantial miscarriage of justice occurred.^[3]  Accordingly, we approach this matter on the basis that the appeal must be allowed unless the Court is satisfied that there was no substantial miscarriage of justice.

We do not consider that the matter can be disposed of as simply as was suggested by the prosecution; namely, on the basis that it was the complainant who made the inadmissible statements and the jury would have attached no weight to them unless it believed her in relation to the offences with which the appellant was charged.  One fallacy in such an approach is that the apparently spontaneous outburst might have appeared especially credible to the jury, the members of which might have asked themselves whether it was likely that the complainant would have made such assertions at the time when she did so for no apparent reason unless there was substance to what she said.  Nonetheless, it does not seem to us to follow that the court must necessarily fail to be satisfied that there was no substantial miscarriage of justice.

What was said by the complainant must be seen in the context of the strong direction given to the jury by the trial judge after he rejected the application for the jury’s discharge.  His Honour said:

“... you may recall a passage in the evidence of the witness earlier on making an allegation against the accused, Barry, in relation to his niece on Palm Island.  That allegation is completely irrelevant to the issues you have to decide in this case.  It has nothing to do with this trial or the evidence in this trial.  You should disregard it entirely and put it completely out of your minds when you are deciding the issues involved in this case.  It has nothing to do with those issues and the issues in this case are to be decided on the relevant evidence only and that evidence is irrelevant to the issues you have to decide in this case.”

Although it is unnecessary to do so on this occasion, if it is appropriate to have regard to the strength of the prosecution case, there seems no basis for concern that an innocent person might have been convicted.  Apart from the testimony of the complainant that she was violently raped by the appellant, there was evidence of fresh complaint and her distressed condition and medical and scientific evidence which supported her claim.

In our opinion, there has been no miscarriage of justice and the appeal should be dismissed.