R v Fao - [2018] QCA 73

SUPREME COURT OF QUEENSLAND

CITATION:

R v FAO [2018] QCA 73

PARTIES:

R
v
FAO
(appellant)

FILE NO/S:

CA No 172 of 2017
DC No 120 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Ipswich – Date of Conviction: 20 July 2017 (Horneman-Wren SC DCJ)

DELIVERED ON:

20 April 2018

DELIVERED AT:

Brisbane

HEARING DATE:

7 February 2018

JUDGES:

Holmes CJ and Gotterson and McMurdo JJA

ORDER:

The appeal be dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted of sexual offences against the nine year old daughter of his de facto wife – where the appellant appeals against his conviction on the ground that the verdict is unreasonable – where the appellant contends that both his evidence and that of the complainant’s mother was inconsistent with the Crown case as to the time at which the offences occurred – where the appellant contends that physical features of the household made it unlikely that the offences could have occurred in the way the complainant described – where the complainant had previously denied being inappropriately touched when questioned by child safety officers – whether the jury were entitled to accept the complainant’s evidence and be satisfied beyond a reasonable doubt of the appellant’s guilt

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – where the appellant was convicted of sexual offences against the nine year old daughter of his de facto wife – where the complainant’s police interview and pre-recorded evidence were replayed during jury deliberations – where the trial judge warned the jury against giving the evidence additional weight because it was replayed but did not remind the jury of the defence case – whether his failure to do so resulted in a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – where the appellant was convicted of sexual offences against the nine year old daughter of his de facto wife – where a doctor gave evidence of examining the complainant in September 2013 – where the Crown prosecutor addressed the jury on the basis that the offences were committed in December 2013 – where the evidence of the medical examination thus became irrelevant to the prosecution case – whether the evidence was prejudicial to the defence case – whether its admission caused a miscarriage of justice

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited
R v SCG (2014) 241 A Crim R 508; [2014] QCA 118, cited

COUNSEL:

N V Weston for the appellant
J A Wooldridge for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

HOLMES CJ: The appellant was convicted of one count of each of the following offences: assault with intent to commit rape; attempted…

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 R v Fao

Details

AGLC: R v Fao [2018] QCA 73
Case: [2018] QCA 73
Decision Date: 20 April 2018

CaseChat Overview and Summary

In this appeal, the appellant was convicted of sexual offences against the nine-year-old daughter of his de facto wife and sought to overturn the conviction on several grounds. The appellant contended that the verdict was unreasonable due to inconsistencies in the evidence, particularly regarding the timing of the offences. Additionally, the appellant argued that certain physical features of the household made it unlikely that the offences could have occurred as described by the complainant. The appellant further submitted that the jury was influenced by the replay of the complainant's police interview and pre-recorded evidence during their deliberations, which may have unfairly prejudiced the verdict.

The legal issues before the court involved assessing whether the jury's acceptance of the complainant's evidence was justified beyond a reasonable doubt, despite the inconsistencies and the appellant's arguments about the physical environment. The court also had to determine if the trial judge's failure to remind the jury of the defence case during deliberations constituted a miscarriage of justice. Another significant issue was whether the admission of the medical examination evidence, which was rendered irrelevant by the prosecution's timeline of the offences, prejudiced the defence and resulted in a miscarriage of justice.

The court held that the jury was entitled to accept the complainant's evidence and be satisfied beyond a reasonable doubt of the appellant's guilt, despite the inconsistencies and the appellant's arguments. The court found no miscarriage of justice in the trial judge's failure to remind the jury of the defence case during deliberations, as it was not necessary to do so given the circumstances. Furthermore, the court determined that the medical examination evidence, although rendered irrelevant by the prosecution's timeline, did not prejudice the defence case or cause a miscarriage of justice.

The appeal was dismissed, and the conviction was upheld. The court found no basis to interfere with the jury's verdict or the trial judge's handling of the case.

Orders

Orders of the court

The appeal be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v FAO [2018] QCA 73
PARTIES:	R v FAO (appellant)
FILE NO/S:	CA No 172 of 2017 DC No 120 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Ipswich – Date of Conviction: 20 July 2017 (Horneman-Wren SC DCJ)
DELIVERED ON:	20 April 2018
DELIVERED AT:	Brisbane
HEARING DATE:	7 February 2018
JUDGES:	Holmes CJ and Gotterson and McMurdo JJA
ORDER:	The appeal be dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted of sexual offences against the nine year old daughter of his de facto wife – where the appellant appeals against his conviction on the ground that the verdict is unreasonable – where the appellant contends that both his evidence and that of the complainant’s mother was inconsistent with the Crown case as to the time at which the offences occurred – where the appellant contends that physical features of the household made it unlikely that the offences could have occurred in the way the complainant described – where the complainant had previously denied being inappropriately touched when questioned by child safety officers – whether the jury were entitled to accept the complainant’s evidence and be satisfied beyond a reasonable doubt of the appellant’s guilt CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – where the appellant was convicted of sexual offences against the nine year old daughter of his de facto wife – where the complainant’s police interview and pre-recorded evidence were replayed during jury deliberations – where the trial judge warned the jury against giving the evidence additional weight because it was replayed but did not remind the jury of the defence case – whether his failure to do so resulted in a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – where the appellant was convicted of sexual offences against the nine year old daughter of his de facto wife – where a doctor gave evidence of examining the complainant in September 2013 – where the Crown prosecutor addressed the jury on the basis that the offences were committed in December 2013 – where the evidence of the medical examination thus became irrelevant to the prosecution case – whether the evidence was prejudicial to the defence case – whether its admission caused a miscarriage of justice M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited R v SCG (2014) 241 A Crim R 508; [2014] QCA 118, cited
COUNSEL:	N V Weston for the appellant J A Wooldridge for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent