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Rape Convictions Quashed Following Miscarriage of Justice

Potts Lawyers > Criminal Law & Offences  > Rape Convictions Quashed Following Miscarriage of Justice

Rape Convictions Quashed Following Miscarriage of Justice

On the 18th of March 2022, the Supreme Court of Brisbane’s Court of Appeal division handed down a decision that effectively quashed two convictions of rape, and revealed an unsettling error of judgement that could have serious implications for court procedure and represents a failure of the justice system.

While you may be aware of this recent development, what you may not know is that Potts Lawyers’ very own Sinead Garland was at the helm, acting as solicitor for the appellant. Her outstanding work led to an order to quash two convictions of guilt that were reached through unjust procedure, and serve as a stark example of a miscarriage of justice.

What had occurred was this; on the 17th of August 2019 in the Southport District Court, a young man of 27 years of age was found guilty of rape after a jury returned with their verdict. It was during these proceedings, that it came to the attention of the learned trial judge that a member of the jury had concealed a written note and attempted to leave with it. This flew in the face of expected jury conduct, and inquiries were made by the trial judge to determine what had happened. The juror revealed that the note contained a written recording of what a bailiff had said to the jury regarding their decision-making process. Not only was this ill-informed advice, but it also represented a breach of expected bailiff conduct, who have a sworn oath to the court to only communicate with the jury when authorised to do so in accordance with section 31 of the Oaths Act 1867. The role of the bailiff is to be a messenger between the jury and the courts, and they are expected to strictly adhere to the court’s discretion when it comes to communication with jurors.

This juror was then permitted to return to the jury room with their fellow jury members while the bailiff was called for questioning. The bailiff accepted that a statement had been made to the jury as a whole, which prompted the requestioning of the juror. They were asked as to whether they could remain impartial given this incident, they replied in the affirmative, and they were asked as to whether any discussions had been had regarding this case, and they replied in the negative. Despite this, the trial judge felt compelled to dismiss this single juror, in fear of, and suspecting that the note may have revealed an inability on behalf of the juror to be impartial. The remaining 11 jurors who were also privy to the bailiff’s statement were able to remain, and the trial proceeded on that basis, whereupon the verdict of guilty was reached.

The appellant in this matter appealed his conviction of both charges, and later amended the grounds of appeal stating that a miscarriage of justice had occurred when the trial judge failed to discharge the entirety of the jury. On appeal, we were able to convey to the court that a miscarriage had in fact occurred. The jury of 11 were not properly insulated and protected from external sources of information from outside of the courtroom, they were provided information that was both untimely and it inadequately explained the expectations of a jury, and the trial judge failed by acting hastily in discharging the single juror, while leaving the remaining jury members who were equally as tainted without any recorrecting direction. What had been said by the bailiff and the impression the remaining jury had taken away from that interaction was not properly uncovered, hence the decision reached was tainted to an indefinite degree.

This incident raises several issues, namely that without an appeal of judgement, this miscarriage could have been undiscovered and lost. This is not only concerning for the applicant, but also raises questions as to whether there is an unknown quantity of individuals, aggrieved and defendants alike, who through no fault of their own have had justice tampered with. This could very well be the tip of an iceberg of undeterminable size.

The implications of this failure are real, with the trial and appeal alone having cost the taxpayer $300,000, not to mention the human element that suffers due to this occurrence. The aggrieved will again have to provide evidence, having to relive that trauma again and endure the emotional exhaustion that comes with trials. The respondent too potentially suffers, a man who was found guilty, was convicted, and has been placed in custody for an extended period of months, has now come to the realization that those last few months of imprisonment may have been for naught, as he now potentially faces a retrial. Together these collected factors contribute to a grave miscarriage of justice. The impartiality of jurors is paramount to the administration of justice, and without the security and assuredness of an impartial jury, the foundations of our legal system begin to crumble. It is this type of work we pride ourselves to be able to pursue and be a part of. Recorrecting injustices, quashing wrongful convictions, and supporting waves of change and reform is recognised as especially valued work at Potts Lawyers, and we consider it an honour to be able to play a role in proceedings such as these.

The silver lining of this situation this is that these flaws in our system that were otherwise unaccounted for have been exposed and have finally had attention drawn.  This recent appeal has incited a state-wide review of the training of bailiffs, the warnings administered, and precautionary instruction to avoid outcomes where similar issues arise. We expect that a thorough assessment is made, and that any necessary changes are implemented immediately and effectively. Incidents such as these cannot be allowed to continue. The State of Queensland is no stranger to reform to court procedure surrounding juries, and change has been effective in the past, and ideally will continue to be so in the future.

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