R v Jae

[2021] QCA 287

SUPREME COURT OF QUEENSLAND

CITATION:

R v JAE [2021] QCA 287

PARTIES:

R
v
JAE
(appellant)

FILE NO/S:

CA No 127 of 2021
DC No 18 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Gympie – Date of Conviction: 13 May 2021 (Porter QC DCJ)

DELIVERED ON:

17 December 2021

DELIVERED AT:

Brisbane

HEARING DATE:

17 September 2021

JUDGES:

Holmes CJ and McMurdo and Mullins JJA

ORDERS:

1.   Appeal allowed.

2.   The convictions upon counts 2, 3 and 4 on the indictment be quashed.

3.   The appellant be retried on those counts.

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – CREDIBILITY – FAILURE TO PUT MATTER TO WITNESS – where the appellant had different counsel representing him at different stages – where, on the first day of the trial, there was an application to further cross-examine the complainants – where the basis of the application was that relevant instructions had not been put during a pre-recording of evidence – where there was discussion between counsel and the trial judge about the application of the rule in Browne v Dunn – where the trial judge refused the application to cross-examine – where it was suggested that, due to the delay, the prosecution could put that the omission to cross-examine at an earlier stage was suggestive of a recent invention – where, on appeal, the appellant gave evidence that he did not give evidence at the trial as a result of the refusal of his application to recall the complainants – whether the defendant was unfairly deterred from giving evidence – whether there was a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where the appellant was convicted on three counts of offences involving domestic violence and acquitted on two others – whether the convictions were unsafe and unsatisfactory, as irreconcilable with the verdicts of acquittal

Browne v Dunn (1893) 6 R 67 (HL), considered
Hofer v The Queen (2021) 95 ALJR 937; [2021] HCA 36, considered
R v Birks (1990) 19 NSWLR 677, cited
R v Foley [2000] 1 Qd R 290; (1998) 105 A Crim R 1; [1998] QCA 225, cited
R v Manunta (1989) 54 SASR 17; [1989] SASC 1628, cited

COUNSEL:

Y Chekirova for the appellant
S L Dennis for the respondent

SOLICITORS:

O’Sullivans Law Firm for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. HOLMES CJ:  I agree with the reasons of McMurdo JA and with the orders his Honour proposes.

2. McMURDO JA:  After a trial by a jury in the District Court, the appellant was convicted of three offences, each committed in the one incident on 1 December 2018.  One was an offence of unlawfully choking a woman, whom I will call L, with whom he was then a domestic relationship.[1]  Another was that he unlawfully assaulted L.  The third offence was that he unlawfully assaulted L’s…