CQ conviction overturned, new trial ordered after jury bias
A man who was convicted at a Central Queensland court for having a sexual relationship with his stepdaughter will have a new trial ordered as an appeal has been granted by the Brisbane Supreme Court.
The man, who has not been named due to sexual matter and child involvement in the case, was convicted in March 2020 at Emerald District Court.
An appeal for this decision was submitted to the Supreme Court of Queensland, on the grounds there was an injustice in the jury and unsubstantiated evidences from two witnesses.
According to the court documents, the man was convicted after a three-day trial for one count of maintaining an unlawful sexual relationship with a child, who was his stepdaughter, between 2011 and 2017.
At the original trial, the man recognised juror number four as the brother of an associate.
The juror was questioned by the judge privately and denied knowing the man and was not aware his brother was an associate.
It was requested the entire jury be discharged and the trial be moved to Brisbane however the trial judge discharged juror number four and ruled against discharging the entire jury.
"It was apparent to the trial judge that juror number four had no personal acquaintance or knowledge of the appellant", Judge Debra Mullins said in the appeal documents.
"Even if there had been grounds for discharging juror number four, the trial judge erred in ignoring the joint submissions made by the prosecutor and the appellant's counsel to discharge the entire jury.
"When the appellant's fundamental right to a jury by trial of 12 persons for a serious charge for which the maximum penalty is life imprisonment was factored into account, the circumstances could not support the trial judge's refusal to discharge the entire jury.
"There was a miscarriage of justice in denial to the appellant of the right to be tried by a jury of 12 persons. The appeal should be allowed, the conviction set aside and a retrial ordered."
A second ground of appeal was put forward in the court documents, questioning the evidence described by witnesses.
The court documents stated the stepdaughter told her friends at school about the "molesting" but "didn't really want to say details or anything".
Judge Mullins stated the disclosures from the witnesses are "unambiguously referable".
"The evidence of each of witness A and witness B is a reporting of a bare assertion of misconduct by the complainant alleged against the appellant with minimal detail of the offending which could be used for assessing the complainant's credibility," the court document reads.
"The evidence of witness A and witness B is therefore admissible as preliminary complaint about the alleged offence."
Judge Philip Morrison ordered on February 11 the appeal be allowed, the conviction set aside and a new trial ordered.