R v Fau - [2019] QCA 126

SUPREME COURT OF QUEENSLAND

CITATION:

R v FAU [2019] QCA 126

PARTIES:

R
v
FAU
(appellant)

FILE NO/S:

CA No 259 of 2017
DC No 290 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Townsville – Date of Conviction: 4 October 2017 (Lynham DCJ)

DELIVERED ON:

25 June 2019

DELIVERED AT:

Brisbane

HEARING DATE:

10 June 2019

JUDGES:

Gotterson and McMurdo JJA and Boddice J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – CONTROL OF PROCEEDINGS – DISCHARGE OF JURY – where the appellant was convicted by a jury of twelve counts of various sexual offences against his step-daughter, the complainant – where the complainant in cross-examination agreed that she had accessed pornographic material on her phone when she was at the appellant’s father’s house – where the complainant’s mother agreed with a question put in cross-examination that the complainant accessed pornography when she stayed at the appellant’s father’s house but also revealed that the complainant used to watch pornography with the appellant – where this information had neither been revealed before nor had been alleged by the complainant – where an application was made by defence counsel to discharge the jury because of the highly prejudicial nature of the response – where the learned trial judge refused to discharge the jury on the basis that any prejudice caused to the appellant by the complainant’s mother’s response could be cured by robust directions to the jury, which were then given – whether there has been a miscarriage of justice

Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29, cited
R v Pearson [2015] QCA 157, cited

COUNSEL:

I A Munsie for the appellant
D C Boyle for the respondent

SOLICITORS:

MacDonald Law for the appellant
Director of Public Prosecutions (Queensland) for the respondent

GOTTERSON JA: The appellant, FAU, was charged with having committed five offences of indecent treatment of a child under care (Counts 1, 4, 5, 9 and 12) and seven offences of rape (Counts 2, 3, 6, 7, 8, 10 and 11). He was convicted on all counts at a trial in the District Court at Townsville which concluded on 4 October 2017.
For each offence, the complainant was the appellant’s step-daughter. She was nearly eight years of age at the time when the first offence (Count 1) was committed in late April 2011 and nine or ten years old at the times of the commissions of the other offences.
On 5 October 2017, the appellant was sentenced to six years imprisonment for each of the rape offences and to lesser periods of imprisonment for the indecent treatment offences. All terms of imprisonment are to be served concurrently. A period of 32 days of pre-sentence custody was declared to be time served under the sentence. A parole eligibility date at 3 September 2020 was fixed.
On 1 November 2017, the appellant filed a notice…

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 Fau

Details

AGLC: R v Fau [2019] QCA 126
Case: [2019] QCA 126
Decision Date: 25 June 2019

CaseChat Overview and Summary

The appellant, Fau, was convicted by a jury of multiple sexual offences against his step-daughter, the complainant. During cross-examination, the complainant confirmed accessing pornographic material on her phone while at the appellant's father's house. The complainant's mother further revealed that the complainant used to watch pornography with the appellant, information that had not been previously disclosed or alleged by the complainant. The defence counsel applied to discharge the jury due to the highly prejudicial nature of this revelation. The trial judge declined to discharge the jury, opting instead to provide robust directions to the jury, which were subsequently delivered.

The primary legal issue before the court was whether the trial judge's decision to deny the application to discharge the jury and instead provide directions amounted to a miscarriage of justice. The court had to determine if the trial judge exercised their discretion correctly and whether the directions sufficiently mitigated any prejudice caused to the appellant. The court also needed to assess if the jury's verdict could have been influenced by the unexpected and potentially prejudicial information provided during the trial.

The court found that the trial judge's decision to provide robust directions to the jury, rather than discharging the jury, was within the bounds of proper judicial discretion. The court held that the directions given were sufficient to address any potential prejudice. The court concluded that there was no miscarriage of justice and that the jury's verdict was soundly based on the evidence presented. The court ultimately dismissed the appeal, affirming the conviction.

The appeal was dismissed, and the conviction stood. The court's ruling underscored the importance of the trial judge's role in managing unexpected disclosures during a trial and the effectiveness of providing clear and robust directions to the jury to mitigate any potential prejudice.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v FAU [2019] QCA 126
PARTIES:	R v FAU (appellant)
FILE NO/S:	CA No 259 of 2017 DC No 290 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Townsville – Date of Conviction: 4 October 2017 (Lynham DCJ)
DELIVERED ON:	25 June 2019
DELIVERED AT:	Brisbane
HEARING DATE:	10 June 2019
JUDGES:	Gotterson and McMurdo JJA and Boddice J
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – CONTROL OF PROCEEDINGS – DISCHARGE OF JURY – where the appellant was convicted by a jury of twelve counts of various sexual offences against his step-daughter, the complainant – where the complainant in cross-examination agreed that she had accessed pornographic material on her phone when she was at the appellant’s father’s house – where the complainant’s mother agreed with a question put in cross-examination that the complainant accessed pornography when she stayed at the appellant’s father’s house but also revealed that the complainant used to watch pornography with the appellant – where this information had neither been revealed before nor had been alleged by the complainant – where an application was made by defence counsel to discharge the jury because of the highly prejudicial nature of the response – where the learned trial judge refused to discharge the jury on the basis that any prejudice caused to the appellant by the complainant’s mother’s response could be cured by robust directions to the jury, which were then given – whether there has been a miscarriage of justice Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29, cited R v Pearson [2015] QCA 157, cited
COUNSEL:	I A Munsie for the appellant D C Boyle for the respondent
SOLICITORS:	MacDonald Law for the appellant Director of Public Prosecutions (Queensland) for the respondent