R v Iongi - [2021] QCA 43

SUPREME COURT OF QUEENSLAND

CITATION:

R v Iongi [2021] QCA 43

PARTIES:

R
v
IONGI, Tangilevu
(appellant)

FILE NO/S:

CA No 226 of 2020
DC No 1965 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 30 September 2020 (Porter QC DCJ)

DELIVERED ON:

16 March 2021

DELIVERED AT:

Brisbane

HEARING DATE:

23 February 2021

JUDGES:

Morrison and McMurdo JJA and Burns J

ORDER:

Appeal dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – DIRECTIONS AS TO PARTICULAR MATTERS – OTHER MATTERS – where the appellant was convicted of four counts of indecent treatment of a child under the age of sixteen years and under care – where the appellant seeks leave to appeal on one such count on the basis that evidence about distressed condition of the complainant was wrongly admitted – where the appellant submits that the learned trial judge erred in directing the jury that there was evidence of distressed condition – whether the verdict was unsafe and unsatisfactory in all circumstances

R v Ambury[2012] QCA 178, cited
R v Beaver (1979) A Crim R 50, cited
R v Berrill [1982] Qd R 508, cited
R v Flannery [1969] VR 586; [1969] VicRp 72, cited
R v Major and Lawrence [1998] 1 Qd R 317; [1997] QCA 100, cited
R v McDougall [1983] 1 Qd R 89, cited
R v Roissetter [1984] 1 Qd R 477, cited
R v Sailor [1994] 2 Qd R 342; [1993] QCA 23, cited
R v Williams [2010] 1 Qd R 276; [2008] QCA 411, cited

COUNSEL:

J A Greggery QC for the appellant
N W Needham for the respondent

SOLICITORS:

Fisher Dore for the appellant
Director of Public Prosecutions (Queensland) for the respondent

MORRISON JA: I have read the reasons of Burns J and agree with those reasons and the order his Honour proposes.
McMURDO JA: I agree with Burns J.
BURNS J: After a trial lasting three days in the District Court at Brisbane, the appellant was found guilty on 30 September 2019 of four counts of indecent treatment of a child under the age of 16 and under care. He was sentenced to an effective head term of nine months imprisonment, suspended after serving four months.
The appellant appeals against his convictions on the sole ground that the learned trial judge erred in directing the jury that there was evidence of distressed condition which, if accepted, was capable of corroborating the complainant’s account.
The Crown case
Each of the offences in question was alleged to have occurred on the morning of 13 December 2017. The complainant was then 12 years of age. She and a friend of around the same age, TC, often stayed at each other’s home for sleepovers. At the time of the offences, TC”s mother was in a relationship with the appellant and they resided together in…

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 Iongi

Details

AGLC: R v Iongi [2021] QCA 43
Case: [2021] QCA 43
Decision Date: 16 March 2021

CaseChat Overview and Summary

The appellant was convicted of four counts of indecent treatment of a child under the age of sixteen years and under care. The appellant sought leave to appeal on one such count, arguing that the trial judge erred in admitting evidence about the distressed condition of the complainant. The appellant submitted that the trial judge should not have directed the jury that this evidence was capable of corroborating the complainant's account of events. The appellant contended that the evidence was inadmissible and that the trial judge's direction to the jury was a misdirection that rendered the verdict unsafe and unsatisfactory. The Crown argued that the evidence was properly admitted and the trial judge's direction to the jury was correct.

The court considered the evidence of the distressed condition of the complainant, which was given by TC, a friend of the complainant, during a s 93A interview. The court noted that the complainant did not give evidence of any subjective feeling of distress or of displaying any sign of distress, and TC was not cross-examined at the s 21AK hearing about her observations. The court held that the trial judge's direction to the jury was not a misdirection or non-direction, as the evidence of the complainant's distressed condition was relevant and capable of corroborating the complainant's account of events. The court found that the evidence was close enough in time to attract a "distressed condition direction", and that the trial judge's direction to the jury was correct.

The court dismissed the appeal and held that the verdict was not unsafe and unsatisfactory in all circumstances. The court found that the evidence of the complainant's distressed condition was properly admitted and that the trial judge's direction to the jury was correct. The court held that the verdict was safe and satisfactory, and that the appeal should be dismissed.

The final orders of the court were that the appeal be dismissed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The evidence comprising the Crown case included the s 93A interviews and s 21AK testimony of the complainant and TC as well as evidence from each of their mothers. Amongst other exhibits, the recording made by TC’s mother on her iPhone was tendered and played. Early on the morning of the second day, the Crown case closed and, when called on, the appellant elected not to give or to call evidence in his defence.The evidence of distressed condition During TC’s s 93A interview, she was asked “what happened” when the complainant returned downstairs after the appellant hugged and kissed her. In response, TC said that while the appellant was still upstairs she sat with the complainant on a two seater couch. She said the complainant was “whispering what happened”. There was then this series of questions and answers:“Q: Sorry, I’m just, just writing this down. On the two seater couch. And what was her facial expression like? Like how do you think – –A: When she like – –Q: How would you describe – –A: When she – –Q: How she was feeling?A: When she walked downstairs, she was like, looked scared, she was like this. She was like, she like looked shocked and like scared.Q: Mm. And what about when she was telling you what had just happened upstairs?A: She was just like, she just said it like, she was like, [the appellant] did this, blah, blah, blah, blah. She was like, she like was saying it to me like she was like shocked or like, I don’t know.” It was this evidence from TC to the effect that the complainant looked shocked and scared soon after the acts constituting count 4 took place that the appellant argued on appeal should not have been left to the jury as evidence capable of amounting to corroboration. The complainant did not give evidence of any subjective feeling of distress or of displaying any sign of distress, and TC was not cross-examined at the s 21AK hearing about her observations although she did volunteer that she and the complainant were “talking in shock about what happened”. The evidence was admitted without objection, that is to say, there was no application by the defence to edit it from TC’s 93A interview. Nor was there any objection to it being left to the jury as evidence capable of corroborating count 4. In that regard, prior to the addresses of counsel, and in the absence of the jury, the prosecutor submitted that the evidence was “close enough in time” to attract a “distressed condition direction”. On the other hand, the prosecutor did not submit that the evidence given by the complainant’s mother regarding her daughter’s distress when revealing what the appellant had done was in the same category because it was submitted to be “too far removed” and “really just part of the narrative”. The issue was set aside to the following day at the request of the appellant’s counsel (who was not the appellant’s counsel on the hearing of this appeal) and, after considering the issue overnight, no objection was taken to the giving of directions along the lines submitted by the prosecutor.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Iongi [2021] QCA 43
PARTIES:	R v IONGI, Tangilevu (appellant)
FILE NO/S:	CA No 226 of 2020 DC No 1965 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 30 September 2020 (Porter QC DCJ)
DELIVERED ON:	16 March 2021
DELIVERED AT:	Brisbane
HEARING DATE:	23 February 2021
JUDGES:	Morrison and McMurdo JJA and Burns J
ORDER:	Appeal dismissed.
CATCHWORDS:	APPEAL AND NEW TRIAL – NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – DIRECTIONS AS TO PARTICULAR MATTERS – OTHER MATTERS – where the appellant was convicted of four counts of indecent treatment of a child under the age of sixteen years and under care – where the appellant seeks leave to appeal on one such count on the basis that evidence about distressed condition of the complainant was wrongly admitted – where the appellant submits that the learned trial judge erred in directing the jury that there was evidence of distressed condition – whether the verdict was unsafe and unsatisfactory in all circumstances R v Ambury[2012] QCA 178, cited R v Beaver (1979) A Crim R 50, cited R v Berrill [1982] Qd R 508, cited R v Flannery [1969] VR 586; [1969] VicRp 72, cited R v Major and Lawrence [1998] 1 Qd R 317; [1997] QCA 100, cited R v McDougall [1983] 1 Qd R 89, cited R v Roissetter [1984] 1 Qd R 477, cited R v Sailor [1994] 2 Qd R 342; [1993] QCA 23, cited R v Williams [2010] 1 Qd R 276; [2008] QCA 411, cited
COUNSEL:	J A Greggery QC for the appellant N W Needham for the respondent
SOLICITORS:	Fisher Dore for the appellant Director of Public Prosecutions (Queensland) for the respondent