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Finau v The Queen

Finau v The Queen

Case [2021] ACTCA 17 2 July 2021

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Finau v The Queen
Citation:	[2021] ACTCA 17
Hearing Date:	18 February 2021
DecisionDate:	2 July 2021
Before:	Burns, Loukas-Karlsson and Charlesworth JJ
Decision:	See [132], [144]
Catchwords:	CRIMINAL LAW – appeal from a verdict of guilty on a charge alleging sexual intercourse without consent – appellant not calling or giving evidence at trial – prosecutor tendering mixed statements of the appellant – trial judge concluding the evidence of the appellant’s version of events did not give rise to a reasonable doubt as to his guilt – consideration of weight to be afforded to a record of police interview in which the appellant made both incriminating and exculpatory statements – whether the trial judge engaged in erroneous reasoning in considering the appellant’s version of events – whether such an error gives rise to a miscarriage of justice – task of Court on appeal – consideration of the role of the reasons of the trial judge in the discharge of the Court’s function on an appeal – verdicts not unreasonable – no miscarriage of justice
Legislation Cited:	Crimes Act 1900 (ACT) ss 52, 54 Evidence Act 2011 (ACT) ss 81, 144, 165B Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 52, 80B Supreme Court Act 1933 (ACT) ss 37O, 68C
Cases Cited:	De Silva v The Queen [2019] HCA 48; 268 CLR 57 Fennell v The Queen [2019] HCA 37; 93 ALJR 1219 Filippou v The Queen [2015] FCA 29; 256 CLR 47 G v H (1994) 181 CLR 387 Liberato v The Queen (1985) 159 CLR 507 Mraz v The Queen (1955) 93 CLR 493 Nguyen v The Queen [2020] HCA 23; 380 ALR 193 Pell v The Queen [2020] HCA 12; 268 CLR 123 SKA v The Queen [2011] HCA 13; 243 CLR 400
Parties:	Ropati Dominic Finau ( Appellant) The Queen ( Respondent)
Representation:	Counsel B Walker SC with M Jones ( Appellant) S Drumgold SC with K McCann ( Respondent)
Solicitors Kamy Saeedi Law ( Appellant) ACT Director of Public Prosecutions ( Respondent)
File Number:	ACTCA 23 of 2021
Decision under appeal:	Court: Supreme Court of the Australian Capital Territory Before: Murrell CJ Date of Decision: 16 June 2020 Case Title: R v Finau Citation: [2020] ACTSC 155

THE COURT

The appellant was tried by judge alone on indictment containing three charges: one count of inflicting actual bodily harm with intent to engage in sexual intercourse in contravention of s 52 of the Crimes Act 1900 (ACT) (Crimes Act) (count 1) and two counts of sexual intercourse without consent contrary to s 54(1) of the Crimes Act (counts 2 and 3). He was found guilty on count 3 and acquitted of the other charges.

Pursuant to s 37O(2) of the Supreme Court Act 1933 (ACT) (Supreme Court Act), the appellant appeals from the guilty verdict on two grounds, namely:

(a)The verdict … is unreasonable and cannot be supported,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Finau v The Queen

Details

AGLC: Finau v The Queen [2021] ACTCA 17
Case: [2021] ACTCA 17
Decision Date

CaseChat Overview and Summary

The appellant, Ropati Dominic Finau, appealed to the Supreme Court of the Australian Capital Territory against a verdict of guilty on a charge of sexual intercourse without consent. The trial judge had found the appellant guilty of one count of sexual intercourse without consent, acquitting him of two other charges. The appeal was brought on two grounds: that the verdict was unreasonable and unsupported by the evidence, and that the trial judge had impermissibly introduced evidence into her deliberations, leading to a miscarriage of justice.

The central legal issues before the Court of Appeal concerned the weight to be afforded to a record of police interview containing both incriminating and exculpatory statements made by the appellant, and whether the trial judge's reasoning in considering the appellant's version of events, as presented in that interview, gave rise to a reasonable doubt. The Court was required to determine if any error in the trial judge's reasoning constituted a miscarriage of justice, and to consider the role of the trial judge's reasons in the discharge of the Court's appellate function.

The Court of Appeal acknowledged an error in the trial judge's reasoning concerning the appellant's account of events, specifically in how she considered the weight of his mixed statements. However, the Court found that this error did not render the verdict unreasonable nor did it occasion a substantial miscarriage of justice. The Court applied principles concerning the assessment of evidence, the role of mixed statements, and the test for a miscarriage of justice on appeal, referencing relevant High Court authorities.

Ultimately, the appeal was dismissed. The Court concluded that despite the identified error in reasoning, the overall evidence supported the guilty verdict, and no substantial miscarriage of justice had occurred.

Orders