R v HCS
[2024] QCA 193
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- Unreported Judgment
- Appeal Determined (QCA)
- R v HCS[2024] QCA 193
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R v HCS[2024] QCA 193
R v HCS[2024] QCA 193
[2024] QCA 193
COURT OF APPEAL
BOND JA
VAUGHAN AJA
DAVIS J
CA No 102 of 2024
SC No 1092 of 2023
THE KING
v
HCS Appellant
BRISBANE
THURSDAY, 17 OCTOBER 2024
JUDGMENT
DAVIS J: The appellant appeals against his conviction in the Trial Division of the Supreme Court on eight counts. Each of those counts alleged offences of a sexual nature committed against a child on 11 September 2021. The child was the cousin to whom the appellant was then engaged and later married. Count 1 on the indictment alleged supply of a dangerous drug to the child. It was only count 1 which was beyond the jurisdiction of the District Court to try. The jury acquitted the appellant on count 1.
The Crown has conceded that the appeal should be allowed and a retrial ordered. It is not submitted on the appellant’s behalf that the court should enter an acquittal on any of the eight counts. Given the Crown’s concession, which is, in my view, properly made, it is only necessary to give short reasons explaining why the jury’s verdicts must be set aside.
The notice of appeal contained one ground, that was that the trial Judge failed to deal with the question posed by the jury while they were deliberating. It is unnecessary to deal with that ground. Two further grounds were added by leave, which were:
- the learned trial Judge erred in allowing the complainant’s s 93A videotape and transcript into the jury room during the jury deliberations; and
- a miscarriage of justice occurred by reason of the failure to direct the jury not to give the complainant’s s 93A evidence undue weight in circumstances where they had unsupervised access to it.
Evidence of the child was admitted through two sources:
- an electronically recorded interview, which was admitted pursuant to s 93A of the Evidence Act 1977 (Qld); and
- an electronic recording of her pre-trial evidence and cross-examination, which was admitted pursuant to s 21AK of the Evidence Act.
The s 93A recording was of poor quality. The jurors were all provided with the transcript of that interview.
It is well established that it will usually be inappropriate for the jury to have unsupervised access to electronic recordings of a complainant child’s statement and evidence while deliberating. This is because there is a danger that undue weight would be given to that evidence.[1]
As to the s 93A recording, it is well established that the jury ought usually be directed that the evidence is not to be given any greater or lesser weight because it has been received in electronic form.[2] As regards the s 21AK recording, such a direction is statutorily mandated.
Her Honour gave an appropriate warning in relation to the s 21AK recording. Her Honour’s attention was not drawn to the desirability of giving a similar direction in relation to the s 93A recording, and none was given. No redirection was sought that a warning be given and neither counsel submitted that the s 93A recording ought be kept from the jury room.
Both the s 93A recording and the transcript of that recording were with the jury during their deliberations. The jury were not given the s 21AK recording.
Therefore, during their deliberations, the jury had unsupervised access to the child’s account given in the s 93A recording and did not have access to the challenge to that account, being the cross-examination shown in the s 21AK recording. As already observed, there was no warning given to the jury against placing undue weight on the s 93A recording.
The Crown was right to concede that a miscarriage occurred and the verdicts must be set aside. The critical evidence was that of the child, which took the form of the two recordings. The s 93A recording had to be considered in the context of the cross-examination conducted pre-trial. All the child’s evidence had to be considered against all the other evidence in the case. As the jury had unsupervised access to the s 93A recording, there was an unacceptable risk of greater consideration being given to that evidence than other evidence.
Given the acquittal on count 1, the indictment is now within the jurisdiction of the District Court to try. The alleged offending occurred at Maudsland, which is within the geographical jurisdiction of the District Court at Southport. I would allow the appeal, set aside the guilty verdicts on each of counts 2 to 8 and 10, remit the matter to the District Court at Southport for retrial.
BOND JA: I agree with the reasons of Justice Davis and the orders he proposes.
VAUGHAN AJA: I agree with Justice Davis.
BOND JA: The orders of the court are:
- (1)Allow the appeal.
- (2)Set aside the guilty verdicts on each of counts 2 to 8 and 10.
- (3)Remit the matter to the District Court at Southport for retrial.
I mention that if anyone present in court is a journalist, they will have to be careful in any report of this not to do something that might identify a child.
Thank you. Adjourn the court.