R v Little[2024] QDCPR 80

DISTRICT COURT OF QUEENSLAND

1. [1]
   The defendant was tried on an indictment charging five counts of rape, one count of sexual assault with a circumstance of aggravation, one count of attempted rape, six counts of rape (domestic violence offence), three counts of suffocation in a domestic setting (domestic violence offence), one count of assault occasioning bodily harm (domestic violence offence) and three counts of strangulation in a domestic setting (domestic violence offence).  
2. [2]
   After a 12-day trial, the jury convicted the defendant of four counts of rape (domestic violence offence), namely counts 10 to 13 on the indictment.  The jury was unable to reach a unanimous verdict regarding one count of rape (domestic violence offence), being count 15.  The jury acquitted the defendant of the other 15 counts on the indictment.  
3. [3]
   On 21 November 2024, I sentenced the defendant, on count 12, an offence of rape (domestic violence offence) to five years imprisonment and to lesser concurrent terms of imprisonment for the other three counts of rape (domestic violence offence).  I ordered that those terms of imprisonment be suspended after two years for an operational period of five years.  
4. [4]
   The effect of declarations and non-declarations of pre-sentence custody meant that the effective term of imprisonment was one of six years imprisonment suspended after three years.  The defendant has now served the actual custodial component of that sentence and any further period in custody will be on remand.  
5. [5]
   The Crown having indicated that they will further proceed on count 15 on the indictment, the defendant has made applications to the court, including an application that proceedings in respect of count 15 be permanently stayed.  
6. [6]
   The exercise of a power to stay an indictment is an exceptional one to be sparingly exercised, and only in circumstances where no other steps can be taken to ensure a fair trial. The discretion involves a balancing of the requirements of fairness to an accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and a need to maintain public confidence in the administration of justice.  
7. [7]
   The defendant points to the forensic difficulty facing the defendant in litigating a single count in proper context of evidence relating to the counts the subject of verdicts in the first trial.  Obviously, the prosecution will rely upon the evidence of those offences of which the defendant was convicted in support of its case on count 15: see, as cited by the Crown prosecutor in his outline, R v Bauer (A Pseudonym) (2018) 266 CLR 56 and Supreme and District Courts Criminal Directions Benchbook No. 34.2. The defendant faces the difficult forensic decision as to what use, if any, is to be made of the evidence of the complainant as to those counts of which he was acquitted and the effect of those acquittals: see, in this regard, R v FAR [2018] QCA 317 at [138]-[144].  
8. [8]
   The forensic difficulties associated with such a retrial of a count following upon mixed verdicts on other counts in a previous trial would not, of itself, justify the exceptional remedy of a stay of the indictment: see, for example, R v FAR.  But that circumstance does not stand alone.  
9. [9]
   In my view, a verdict of guilty of count 15 would, in light of the earlier acquittals, particularly the related count 14, be unreasonable and liable to be set aside on appeal.  That too, of itself, would not be such as to justify the exceptional remedy of a stay.
10. [10]
    But in the meantime, the defendant would be, if bailed, which order is opposed by the Crown, most likely held in immigration detention.  
11. [11]
    It is a combination of all those circumstances, in the particular circumstances of this case, which leads me to conclude that the further prosecution of count 15 would be unjustifiably oppressive to the defendant and that use of the court’s procedures in such way would be liable to bring the administration of justice into disrepute. In those circumstances, I am satisfied that further prosecution of count 15 would be an abuse of the process of this court, and that the indictment should be permanently stayed.  
12. [12]
    I order that the indictment 2238/24 be permanently stayed.  The defendant is discharged.  In the circumstances, there is no need to further consider the defendant’s application for bail.
13. [13]
    The defendant also seeks an order, pursuant to s 70(7) of the Jury Act 1995 (Qld) (‘Jury Act’), authorising an investigation of suspected bias, fraud or an offence pursuant to the Jury Act.  
14. [14]
    The defendant relies upon information passed on by the learned Crown prosecutor following sentence of the defendant in an email dated 25 November 2024.  The learned Crown prosecutor brought to the defendant’s legal representative’s attention:

In a passing comment at some point after the sentence, [the complainant] mentioned that one of the jurors spoke to her and [the complainant] said she got her answer.  I asked [the complainant] who she was referring too and she indicated the young male juror.  Otherwise we did not speak further about it.  In her comment to me, [the complainant] did not mention anything about discussions of jury deliberations.

However, [the complainant] spoke with the victim liaison officer on Friday afternoon at 5:30pm.  During that conversation, [the complainant] remarked that a juror approached her and discussed what happened in deliberations.  

15. [15]
    The reference to the Friday afternoon is puzzling.  The defendant had been sentenced, as noted earlier, on 21 November 2024, which was a Thursday.  It may well be that it is a reference to a conversation which did occur the following day between the complainant and a victim liaison officer.  It was certainly, it seems, a conversation with that person subsequent to verdict.  
16. [16]
    Further information was then obtained by the learned Crown prosecutor, conveying the following further information from the victim liaison officer: 

Comp also remarked that a juror approached her and discussed what happened in deliberations.  Comp said this made her think that a miscarriage of justice happened, and the legal system was not working.  VLO did not ask any direct questions about the content of the juror conversation, as not to lead comp or be unable to respond with the required legal knowledge.  VLO advised she would pass the information of the juror contact on to the CP and LO.

17. [17]
    The defendant also refers to some information apparently published to the internet by the complainant, as further suggesting some contact between the complainant and jurors, as follows:  

I am so sorry to the two jurors who have this on their conscience.  I do not know your names or anything about either of you, but I hope you seek counselling and know that I am so, so, so fucking sorry that you had to sit through such disturbing evidence.  

18. [18]
    The complainant has, today, informed counsel for the Crown that any discussion with a juror occurred subsequent to their verdicts, and, indeed, subsequent to sentence of the defendant.  
19. [19]
    The contents of the written material I have referred to are consistent with any such contact with a juror occurring subsequent to verdict.  
20. [20]
    In the context of considering an appeal against an order of a Judge dismissing an application, pursuant to s 70(7) of the Jury Act, to investigate suspected bias of a member of a jury that had convicted the appellant of murder, in Knight v The Queen [2014] 1 Qd R 329, Appeal Justice Muir, with whom Boddice and Jackson JJ agreed, said at 339 [33]: 

Having regard to the constitutional role of juries of the triers of fact in criminal trials, the respect with which the law has traditionally treated jury verdicts and the ability of juries to reach their verdicts faithfully following the trial judge’s directions, it cannot be supposed that s 70(7) contemplated the launching of an investigation without good cause.  Nor could the legislature have regarded the authorising of a such an investigation as anything other than a serious step. Those circumstances support the construction, which to my mind is borne out by the normal everyday meaning of the word used, that for there to be ‘grounds to suspect’ for the purposes of s 70(7) there needs to be more than the existence of a mere possibility that a juror obtained knowledge of prior convictions before a verdict was returned.  Such a possibility may exist in respect of every jury trial in which the accused has prior convictions.  

21. [21]
    I do not consider in all the circumstances that the material referred to by the defendant provides reasonable grounds to suspect any bias of a juror in reaching their verdict.  
22. [22]
    Although the comments of Appeal Justice Muir were in the context of the possibility of an investigation of jury bias, I see no reason why a similar circumspection should not be applied to ordering an investigation in relation to a possible offence by a juror and/or the complainant pursuant to s 70 of the Jury Act.  The material before the court does not reach that bar, and I decline to order the investigation sought by the defendant.