R v Han

Case [2022] QCA 199 14 October 2022

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Han [2022] QCA 199

PARTIES:

R
v
HAN, Xiuguang
(appellant)

FILE NO/S:

CA No 255 of 2021
DC No 45 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 22 September 2021 (Rackemann DCJ)

DELIVERED ON:

14 October 2022

DELIVERED AT:

Brisbane

HEARING DATE:

31 May 2022

JUDGES:

Mullins P, Dalton JA and Flanagan J

ORDERS:

1. Leave to adduce the affidavit of Jing Gao, filed 18 May 2022, is granted.

2. Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE – APPEAL DISMISSED – where the appellant was charged of three counts of sexual assault and one count of rape – where the appellant offended against the complainant in a car – where the appellant agreed that the conduct of two of the counts occurred but alleged that they were consensual and disagreed that two of the counts occurred at all – where the appellant submits it was not open to the jury, acting rationally, to be satisfied beyond reasonable doubt that the complainant’s account was both credible and reliable – where the appellant argued the complainant’s account was inconsistent with CCTV and DNA evidence – whether the complainant was credible and reliable – whether the verdict was unreasonable in all of the circumstances

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – CONSIDERATION OF SUMMING UP AS A WHOLE – where the trial judge directed the jury to consider the pretext call as a whole – where the trial judge did not refer to the exculpatory statements specifically in summing up – where the trial judge incorporated defence submissions in summing up – whether the trial judge failed to adequately direct the jury about the use that could be made of the pretext call

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the interpreter made interpreting errors – where the appellant’s interpreter made errors in the examination of the appellant at trial – where the appellant had a working proficiency of English – where the appellant’s solicitor was a qualified interpreter – where the trial judge determined there were sufficient safeguards in place to proceed despite inaccuracies – where new evidence after the trial shows other inaccuracies – whether there was a miscarriage of justice because of the inaccuracies in the interpretation of the appellant’s evidence at trial

Allied Interstate (Qld) Pty Ltd v Barnes (1968) 118 CLR 581; [1986] HCA 76, referred
Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42, cited
Burns v The Queen (1975) 132 CLR 258; [1975] HCA 21, cited
De La Espriella-Velasco v The Queen (2006) 31 WAR 291; [2006] WASCA 31, cited
Folbigg v R [2007] NSWCCA 371, cited
M v The Queen

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 Han

Details

AGLC: R v Han [2022] QCA 199
Case: [2022] QCA 199
Decision Date: 14 October 2022

CaseChat Overview and Summary

The appellant appealed against his conviction of three counts of sexual assault and one count of rape, arguing the verdict was unreasonable or insupportable. The appeal also included grounds related to alleged misdirection and non-direction by the trial judge in the summing up of the evidence, as well as claims of irregularities in the trial process, including interpretation errors. The case was heard in the court of appeal.

The court was required to determine whether the jury’s verdict was unreasonable or insupportable, taking into account the credibility of the complainant and the appellant’s contentions regarding inconsistencies with CCTV and DNA evidence. The court also needed to consider whether there was a misdirection or non-direction by the trial judge during the summing up, particularly regarding the handling of the pretext call and the exculpatory statements made by the appellant. Additionally, the court had to assess whether the alleged inaccuracies in the interpretation of the appellant’s evidence during the trial amounted to a miscarriage of justice.

The court held that the jury’s verdict was open to them and was not unreasonable in all of the circumstances. The court found that the trial judge’s summing up, when considered as a whole, did not contain a misdirection or non-direction that would undermine the fairness of the trial. The court also determined that the alleged inaccuracies in the interpretation of the appellant’s evidence did not amount to a miscarriage of justice. Therefore, the appeal was dismissed.

The court granted leave to adduce the affidavit of Jing Gao, filed on 18 May 2022, and dismissed the appeal. The conviction of the appellant on all counts was upheld.

Orders

Orders of the court

1. Leave to adduce the affidavit of Jing Gao, filed 18 May 2022, is granted.

2. Appeal 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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Actions

Citations

R v Han [2022] QCA 199

Cases Citing This Decision

No citing cases yet.

Cases Cited

R v Nash [2022] QCA 84
Citation 1 (Para 3)

…In R v Nash [2022] QCA 84 at [29] Martin SJA (with whom Bowskill CJ and Sofronoff P agreed) considered whether any direction is required where the Crown does not rely on the evidence as constituting a confession. His Honour referred to the decision of Douglas J in R v Booth & Combarngo [2018] QCA 74 at [58] that…
R v Sunderland [2020] QCA 156
Citation 2

…4, cited R v Sakail [1993] 1 Qd R 312, referred R v Sunderland (2020) 5 QR 261; [2020] QCA 156, cited COUNSEL: S C Holt KC, with J Liddle, for the appellant C W Wallis for the respondent SOLICITORS: Gilshenan and Luton Legal Practice for the appellant Director of Public Prosecutions (Queensland) for the responden…
Nguyen v The Queen [2020] HCA 23
Citation 3

…1994) 181 CLR 487; [1994] HCA 63 , cited Nguyen v The Queen (2020) 269 CLR 299; [2020] HCA 23, followed Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, cited R v Ali [2017] QCA 300, cited R v BCQ (2013) 240 A Crim R 153; [2013] QCA 388, cited R v Booth & Combarngo [2018] QCA 74, cited R v Caulfield [2012] QC…
Pell v The Queen [2020] HCA 12
Citation 4

…2020) 269 CLR 299; [2020] HCA 23, followed Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, cited R v Ali [2017] QCA 300, cited R v BCQ (2013) 240 A Crim R 153; [2013] QCA 388, cited R v Booth & Combarngo [2018] QCA 74, cited R v Caulfield [2012] QCA 204, cited R v Cox [1986] ] 2 Qd R 55, cited R v Nash [2022…
R v Ali [2017] QCA 300
Citation 5 (Para 2)

…important to place these three alleged inadequacies into context. There is no Benchbook direction relating specifically to pretext calls. In R v Ali [2017] QCA 300 at [62] Philippides JA stated that “the standard direction” is “to the effect that, in order to rely on the evidence of a pretext call, the jury need…
R v BCQ [2013] QCA 388
Citation 6 (Para 7)

…In R v BCQ [2013] QCA 388, the offender was convicted of multiple counts of sexual misconduct against the complainant child who was the appellant’s step-grandchild. The complainant relied upon a pretext call in which the appellant apologised for his conduct when the complainant was a “little girl”. The appellant…
R v Caulfield [2012] QCA 204
Citation 7 (Para 5)

…In R v Caulfield [2012] QCA 204, the offender was convicted of one count of common assault and two counts of indecent assault on a 16 year old student. The complainant gave evidence that the day after the offences were committed, after the appellant’s wife had gone to work, he came to her bedroom and said to her…
R v ON [2009] QCA 62
Citation 8 (Para 1)

…By reference to the decision of this Court in R v ON [2009] QCA 62, the appellant submits that the learned trial judge was required to precisely identify what allegations were the subject of admissions in the pretext call. A failure to do so led to a risk that the jury may have regarded the evidence in some unsp…
Folbigg v R [2007] NSWCCA 371
Citation 9 (Para 26)

…ues before the jury; whether the material arising from the irregularity was prejudicial; and the extent of the prejudice”.[29] [29] Folbigg v R [2007] NSWCCA 371 per McClellan CJ at CL (with whom Simpson and Bell JJ agreed).…
De La Espriella-Velasco v The Queen [2006] WASCA 31
Citation 10

…58; [1975] HCA 21, cited De La Espriella-Velasco v The Queen (2006) 31 WAR 291; [2006] WASCA 31, cited Folbigg v R [2007] NSWCCA 371, cited M v The Queen (1994) 181 CLR 487; [1994] HCA 63 , cited Nguyen v The Queen (2020) 269 CLR 299; [2020] HCA 23, followed Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, cite…
R v PV; Ex parte Attorney-General (Qld) [2004] QCA 494
Citation 11

…[2009] QCA 62, cited R v PV; Ex-parte Attorney-General (Qld) [2005] 2 Qd R 325; [2004] QCA 494, cited R v Sakail [1993] 1 Qd R 312, referred R v Sunderland (2020) 5 QR 261; [2020] QCA 156, cited COUNSEL: S C Holt KC, with J Liddle, for the appellant C W Wallis for the respondent SOLICITORS: Gilshenan and Luton Le…
Ebatarinja v Deland [1998] HCA 62
Citation 12 (Para 13)

…ir trial.[21] [21]Appellant’s outline of submissions, paragraph 64; respondent’s outline of submissions, paragraph 8.2 citing Ebatarinja v Deland (1998) 194 CLR 444 at 454 and R v Saraya (1993) 70 A Crim R 515.…
Chappel v Hart [1998] HCA 55
Citation 13 (Para 24)

…the prosecution, the jury may attach such weight to it as they think fit. By reference to the decision of the High Court in Allied Interstate (Qld) Pty Ltd v Barnes (1968) 118 CLR 581, Thomas J accepted that the self-serving part of a mixed statement may be used as evidence of the truth thereof. The appellant also referre…
M v the Queen [1994] HCA 63
Citation 14

…1, cited Folbigg v R [2007] NSWCCA 371, cited M v The Queen (1994) 181 CLR 487; [1994] HCA 63 , cited Nguyen v The Queen (2020) 269 CLR 299; [2020] HCA 23, followed Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, cited R v Ali [2017] QCA 300, cited R v BCQ (2013) 240 A Crim R 153; [2013] QCA 388, cited R v B…
Van den Hoek v The Queen [1986] HCA 76
Citation 15

…evidence at trial Allied Interstate (Qld) Pty Ltd v Barnes (1968) 118 CLR 581; [1986] HCA 76, referred Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42, cited Burns v The Queen (1975) 132 CLR 258; [1975] HCA 21, cited De La Espriella-Velasco v The Queen (2006) 31 WAR 291; [2006] WASCA 31, cited Folbigg v R [2…
Barca v the Queen [1975] HCA 42
Citation 16

…1968) 118 CLR 581; [1986] HCA 76, referred Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42, cited Burns v The Queen (1975) 132 CLR 258; [1975] HCA 21, cited De La Espriella-Velasco v The Queen (2006) 31 WAR 291; [2006] WASCA 31, cited Folbigg v R [2007] NSWCCA 371, cited M v The Queen (1994) 181 CLR 487; [199…
Burns v the Queen [1975] HCA 21
Citation 17

…n (1975) 133 CLR 82; [1975] HCA 42, cited Burns v The Queen (1975) 132 CLR 258; [1975] HCA 21, cited De La Espriella-Velasco v The Queen (2006) 31 WAR 291; [2006] WASCA 31, cited Folbigg v R [2007] NSWCCA 371, cited M v The Queen (1994) 181 CLR 487; [1994] HCA 63 , cited Nguyen v The Queen (2020) 269 CLR 299; [2…
Allied Interstate (Qld) Pty Ltd v Barnes [1968] HCA 76
Citation 18 (Para 24)

…the jury may attach such weight to it as they think fit. By reference to the decision of the High Court in Allied Interstate (Qld) Pty Ltd v Barnes (1968) 118 CLR 581, Thomas J accepted that the self-serving part of a mixed statement may be used as evidence of the truth thereof. The appellant also referred to the obs…
R v Booth & Combarngo [2018] QCA 74
Citation 19 (Para 3)

…where the Crown does not rely on the evidence as constituting a confession. His Honour referred to the decision of Douglas J in R v Booth & Combarngo [2018] QCA 74 at [58] that: “There may be differing views as to whether a trial judge should give such direction in the case of statements against interest as oppo…

Legislation Cited

No legislation cited in this judgment.

CITATION:	R v Han [2022] QCA 199
PARTIES:	R v HAN, Xiuguang (appellant)
FILE NO/S:	CA No 255 of 2021 DC No 45 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 22 September 2021 (Rackemann DCJ)
DELIVERED ON:	14 October 2022
DELIVERED AT:	Brisbane
HEARING DATE:	31 May 2022
JUDGES:	Mullins P, Dalton JA and Flanagan J
ORDERS:	1. Leave to adduce the affidavit of Jing Gao, filed 18 May 2022, is granted. 2. Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE – APPEAL DISMISSED – where the appellant was charged of three counts of sexual assault and one count of rape – where the appellant offended against the complainant in a car – where the appellant agreed that the conduct of two of the counts occurred but alleged that they were consensual and disagreed that two of the counts occurred at all – where the appellant submits it was not open to the jury, acting rationally, to be satisfied beyond reasonable doubt that the complainant’s account was both credible and reliable – where the appellant argued the complainant’s account was inconsistent with CCTV and DNA evidence – whether the complainant was credible and reliable – whether the verdict was unreasonable in all of the circumstances CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – CONSIDERATION OF SUMMING UP AS A WHOLE – where the trial judge directed the jury to consider the pretext call as a whole – where the trial judge did not refer to the exculpatory statements specifically in summing up – where the trial judge incorporated defence submissions in summing up – whether the trial judge failed to adequately direct the jury about the use that could be made of the pretext call CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the interpreter made interpreting errors – where the appellant’s interpreter made errors in the examination of the appellant at trial – where the appellant had a working proficiency of English – where the appellant’s solicitor was a qualified interpreter – where the trial judge determined there were sufficient safeguards in place to proceed despite inaccuracies – where new evidence after the trial shows other inaccuracies – whether there was a miscarriage of justice because of the inaccuracies in the interpretation of the appellant’s evidence at trial Allied Interstate (Qld) Pty Ltd v Barnes (1968) 118 CLR 581; [1986] HCA 76, referred Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42, cited Burns v The Queen (1975) 132 CLR 258; [1975] HCA 21, cited De La Espriella-Velasco v The Queen (2006) 31 WAR 291; [2006] WASCA 31, cited Folbigg v R [2007] NSWCCA 371, cited M v The Queen