Benjamin Graeme Pearce to face retrial for alleged rape after series of bungles at trial

A man has had his rape conviction quashed and a new trial ordered after a series of bungles at trial which included a note hidden in a phone case and the bailiff speaking to a juror.

A man has had his rape conviction quashed and a new trial ordered after a series of court bungles, including a note hidden in a phone case and a bailiff speaking to a juror.

Benjamin Graeme Pearce was convicted of two counts of rape in the Southport District Court in August last year.

It was alleged he raped a women in Burleigh Heads in August 2019.

A Court of Appeal decision released on Friday revealed the trial ran smoothly until it was reported – just before the jury began deliberation – that a juror had a note hidden in her phone case.

A copy of the note was included in the Court of Appeal decision. “I said I belief (sic) each juror has the right for own (sic) decision. Not to be swayed. She said no. Have to listen you might change their mind. No happy (sic) with that answer/that is not how jury work. I have been doing this 10 yr (sic) was decision case with us. Bailiff.”

The Court of Appeal documents stated the juror was questioned about the note and asked about the contents. They were not asked when the conversation with the bailiff took place.

The Court of Appeal documents show the trial judge – Judge Rowan Jackson – allowed the juror to return to the jury room with the other jurors.

It was then the bailiff was questioned.

“I was in there to take their phones off them,” the bailiff said. “And she asked me a question while they’re all sitting around the table. She just said, ‘What happens if we can’t all agree?’ I said ‘Well, that is why 12 of you are here, so that youse can all come together, everyone speak, and your – your opinion could be swayed by another juror,’ and that was the context of our conversation.”

Judge Jackson and Pearce’s lawyer became concerned the note showed the juror was not willing to perform their job impartially.

More discussion was had between counsel and Judge Jackson and it was ultimately decided – 50 minutes later – to dismiss the juror.

That juror had been sitting in the jury room with the other jurors the entire time the discussion was taking place.

The jury later came back with a guilty verdict.

In his decision, Court of Appeal Judge John Bond said: “In this case, it was evident that there had been an unauthorised communication between the bailiff and jury which constituted a clear departure from this fundamental tenet.”

He also noted Judge Jackson gave no reasons for discharging the juror.

Judge Bond said it was clear from the questioning of the juror and bailiff that there was a problem with the entire jury which could have been corrected by a direction about the bailiff’s communications.

“In my opinion the conviction must be set aside,” Judge Bond said.

“Although the prospect of a retrial may seem unfortunate, it is a small price to pay for maintaining procedures fundamental to criminal justice.”

It is not clear when the retrial will take place.

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