R v Jai

Case [2022] QCA 235

SUPREME COURT OF QUEENSLAND

CITATION:

R v JAI [2022] QCA 235

PARTIES:

R
v
JAI
(appellant)

FILE NO/S:

CA No 77 of 2022
DC No 40 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Gympie – Date of Conviction: 22 April 2022 (McDonnell DCJ)

DELIVERED ON:

25 November 2022

DELIVERED AT:

Brisbane

HEARING DATE:

14 November 2022

JUDGES:

Morrison and Flanagan JJA and Applegarth J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of three counts of indecent treatment of a boy under 17 relating to one complainant and was convicted of one count of indecent assault on a male relating to a second complainant – where the events relating to all counts occurred in 1979 and the 1980s – where the first complainant gave evidence of uncharged acts – where the first complainant identified the vehicle that the appellant owned at the time of the alleged offences, and the location of a shed at which the uncharged acts are said to have occurred – where the identified vehicle was not owned by the appellant at the time the alleged offences were said to have occurred – where the identified location did not exist at the time the uncharged acts were said to have occurred – where the evidence of the first complainant bolstered the evidence of the second complainant – whether the two deficiencies in the first complainant’s evidence required the jury, acting rationally, to have entertained a reasonable doubt about the appellant’s guilt in relation to the counts for which he was convicted

Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25, cited
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, cited
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, cited
R v Miller (2021) 8 QR 221; [2021] QCA 126, cited
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited

COUNSEL:

S G Bain for the appellant
A Nikolic for the respondent

SOLICITORS:

Bernard Bradley & Associates for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. MORRISON JA:  I agree with Applegarth J.

  2. FLANAGAN JA:  I agree with Applegarth J.

  3. APPLEGARTH J:  The events to which this appeal relates occurred in 1979 and the 1980s.  The complainants were teenage boys at the time.  The appellant was some years older.  The complainants were cousins.  Their families mixed socially with the appellant’s family in a rural community close to a regional city.  I shall call the first complainant Mark and the second complainant Andrew.  The appellant was about five years older than Mark and even older than Andrew.  He was a good friend of one of Mark’s older brothers.

  4. The appellant’s alleged sexual abuse…

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Details
AGLC
R v Jai [2022] QCA 235
Case
[2022] QCA 235
Decision Date

CaseChat Overview and Summary

The appellant, Jai, was convicted of multiple counts of indecent treatment and indecent assault relating to two complainants. The events in question occurred between 1979 and the 1980s. The first complainant provided evidence of uncharged acts and identified the vehicle the appellant owned at the time of the alleged offences and the location of a shed where some of the uncharged acts are said to have occurred. However, it was found that the vehicle was not owned by the appellant at the time of the alleged offences and the identified location did not exist at the time the uncharged acts were said to have occurred. The appellant argued that these deficiencies in the first complainant's evidence required the jury, acting rationally, to have entertained a reasonable doubt about his guilt.

The court had to decide whether the deficiencies in the first complainant's evidence reduced the probative value of the evidence in such a way that the appellate court ought to conclude that there is a significant possibility that an innocent person has been convicted. The court found that the jury, acting reasonably, was not required to have a reasonable doubt about the appellant's guilt in relation to the charges he faced by reason of a deficiency in the first complainant's evidence about uncharged acts at a shed. The court concluded that the deficiencies in relation to the red HiLux and the shed, taken together, were not discrepancies making it such that the jury, acting rationally, ought to have entertained a reasonable doubt as to the appellant's guilt on the Confederate Street counts.

The appeal was dismissed. The court found that the deficiencies in the first complainant's evidence did not render his evidence about the Confederate Street charges unreliable or dishonest. The court further found that the evidence of the first complainant was supported by other evidence, including the preliminary complaint evidence given by his mother and sister, which was consistent with his account. The court also found that the two highlighted deficiencies in the first complainant's evidence were weaknesses to which the jury was alerted, but there was no ground of appeal in relation to the trial judge's directions about the evidence.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The relevant principles were discussed by this Court in R v Miller.[7] In the course of doing so, the Court stated:[8]“An appellant who contends that the verdict of the jury was unreasonable or that it was unsupported by the evidence must identify the weaknesses in the evidence and must then also demonstrate that these weaknesses reduced the probative value of the evidence in such a way that the appellate court ought to conclude that even making full allowance for the advantages enjoyed by the jury there is a significant possibility that an innocent person has been convicted. The mere identification of weaknesses in the prosecution case is not enough to sustain the ground. As Brennan J said in M v The Queen, and as criminal practitioners and trial judges know very well, it is a sad but salutary experience of counsel for the defence that the prosecution’s “weak point” is often brushed aside dismissively by a jury satisfied of the honesty of the prosecution witness.[9]”The evidence in greater detail[7](2021) 8 QR 221 at 228-230 [13]-[19].[8]At 230 [18], emphasis and citations in the original.[9]M at 507-508.The evidence of Mark Mark was born in 1964 into a large family. His parents worked in paid employment and also ran two farms after hours and on weekends. The family lived in a house in Confederate Street. Mark’s older brother, who I will call Dave, was a friend of the appellant. The appellant’s family were friends of Mark’s family. The appellant was about five years older than Mark. He had a much more solid build than Mark and was perhaps twice his size. When Mark was 15, he was very tall, “very, very thin”, and probably weighed at most around 40-45kg. His sister described him as “a really scrawny kid”. Work was a focus of Mark’s family, which was not well off financially. The children would help with jobs around the farms after school and on weekends. The sexual acts that were alleged to constitute the Confederate Street counts occurred when Mark’s parents were at work and he was at home alone. He described being up a ladder cleaning the ceiling in his parents’ bedroom when the appellant arrived. The appellant came into the house through the front door and into the room. After chatting with Mark for a while, he ran his hand up Mark’s leg and grabbed hold of his penis through his underpants. Mark told him to get away and the appellant said something like, “I don’t know what you’re talking about”. The appellant ran his hand up Mark’s legs a couple of times and grabbed his penis again. Mark was worried about falling off the ladder and got down from it, at which point the appellant grabbed him and took him into Mark’s bedroom. It is unnecessary to elaborate upon much of the detail of the indecent treatment that occurred in the bedroom. Mark’s evidence included detail of the type of dressing gown that he was wearing and being disrobed. He described how the appellant lay across him so that he had the top half of his body over the top of Mark’s body while holding him on the bed.

Decision

Reasons for decision

The jury, acting reasonably, was not required to have a reasonable doubt about the appellant’s guilt in relation to the charges he faced by reason of a deficiency in Mark’s evidence about uncharged acts at a shed. A jury, acting reasonably, might conclude that Mark was honest, but unreliable, in saying that the shed in which he was sexually abused at the age of 17 was located on the property at Hastings Road. Such a conclusion did not require the jury, acting reasonably, to have entertained a reasonable doubt about the appellant’s guilt on the Confederate Street charges. Mark’s unreliability in relation to the location of the shed did not necessarily render his evidence about the Confederate Street charges unreliable, let alone dishonest.Conclusion The deficiencies in relation to the red HiLux and the shed, taken together, were not discrepancies making it such that the jury, acting rationally, ought to have entertained a reasonable doubt as to the appellant’s guilt on the Confederate Street counts. Mark’s evidence about those offences was supported by other evidence about painting his parents’ ceiling at the relevant time. Mark’s credibility was reinforced by the preliminary complaint evidence given by his mother and by his sister. The details recounted by those preliminary complaint witnesses was consistent with Mark’s evidence. Mark’s evidence about what occurred to him at Confederate Street the first day he was sexually assaulted by the appellant was supported by Andrew’s evidence in terms of points of similarity. The jury was entitled to accept Andrew’s evidence about being sexually assaulted by the appellant. The two highlighted deficiencies in Mark’s evidence relate to traumatic events that occurred decades before Mark reported them to police. There is no evidence that Mark’s diagnosed PTSD made his evidence about the Confederate Street counts unreliable. An assessment of the evidence leaves open the conclusion that the passage of time and the process of recollection led him to recall, mistakenly, that the appellant was driving a red HiLux when he pulled up at Confederate Street, and that the shed in which he was sexually assaulted by the appellant when he was aged around 17 was located at Hastings Road. Mark explained his mistake in thinking that it was a red HiLux by saying “You don’t forget being sexually abused by anyone” and all “the other stuff becomes peripheral”. He could not recall any other vehicles that the appellant or the appellant’s family owned at the time, and he mistakenly reconstructed a recollection of the more memorable red HiLux. A similar process of mistaken reconstruction reasonably explains a mistake in the location of the shed. These were weaknesses in Mark’s evidence. They were weaknesses to which the jury was alerted. There is no ground of appeal in relation to the trial judge’s directions about the evidence, including the Robinson and Longman directions that were given.

Ratio Decidendi

Legal Principle Established

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