Why Bowen child rape case granted re-trial over paperwork issue

A young girl may have to testify all over again after a Queensland man’s convictions for rape and other child sex offences were set aside over a procedural error.

A man convicted of 16 child sex offences at trial in Bowen has successfully argued he suffered a miscarriage of justice.

It is the second time a Bowen rape trial verdict has been overturned in the appeal court this year but that accused man argued there were cumulative errors that produced an unfair trial including improper amendments mid trial and the jury not being directed correctly.

In the more recent case, Barrister Michael Copley argued in the Queensland Court of Appeal that a trial in August last year was founded on a document promised but not actually delivered before the trial.

Barrister Philip McCarthy argued the course adopted at trial was procedural and adopted for efficiency but “had no effect on the process or quality of the trial”.

The two prestigious Queen’s Counsel argued minutia related to trial procedures under Queensland’s Criminal Code Act.

A jury had convicted the man on August 18, 2021, in Bowen on one count of maintaining an unlawful sexual relationship, four counts of rape, eight counts of indecent treatment of a child with a circumstance of aggravation that she was under 12 and three counts of indecent treatment of a child.

Two trials that resulted in guilty verdicts at Bowen have been overturned this year.

There was an issue with dates on two of the rape charges when the trial began and a replacement indictment with the right dates was to be sent from Townsville to Bowen.

An indictment is the document that details each charge and this is read out when a person is arraigned – asked whether they plead guilty or not guilty – in a courtroom.

The sitting judge, prosecutor and legal counsel agreed the trial should begin with the wording from the replacement indictment which would arrive the next day.

Appeal court Justices Debra Mullins and Philip Morrison said compliance with s 560(2) of the Code was not a matter the accused man’s counsel could waive.

“The (man convicted at trial) has therefore shown there was a miscarriage of justice,” they said in a written judgment.

“The appeal must be allowed, the convictions set aside and a retrial ordered.

“As a postscript, it should be noted that the course that was adopted during the trial of using the copy indictment arose out of the view of the trial judge and the prosecutor that the prosecutor who did not have a commission to prosecute could not amend the November 2020 indictment to correct the error in counts 15 and 16.

“That was a mistaken view.”

Instead, the justices said, the man could have been arraigned on the indictment with the date errors) and the trial judge could have exercised his power to order the omitted words “on a date unknown” be inserted.

Justice Frances Williams agreed an appeal must be allowed and the convictions set aside but she argued there should be a new trial rather than a retrial.

“The failure to comply with the statutory criteria in s 560(2) renders the trial a nullity in the sense that the convictions produced cannot withstand an appeal as, in effect, there has been no trial,” she said in the written judgment.

“The consequence of the trial being a nullity is that it is not strictly a retrial as there was no valid trial.

“It is appropriate to order a new trial on all counts.”