R v Lahai - [2023] QCA 81

SUPREME COURT OF QUEENSLAND

CITATION:

R v Lahai [2023] QCA 81

PARTIES:

R
v
LAHAI, Jacob
(appellant/applicant)

FILE NO/S:

CA No 191 of 2021
DC No 54 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Cairns – Date of Conviction: 23 July 2021; Date of Sentence: 5 August 2021 (Morzone KC DCJ)

DELIVERED ON:

28 April 2023

DELIVERED AT:

Brisbane

HEARING DATE:

15 September 2022

JUDGES:

Mullins P, Morrison JA and North J

ORDERS:

1. Appeal against conviction dismissed.

2. Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – OTHER MATTERS – where the appellant was convicted of three counts of rape (counts 2, 4 and 5) – where the appellant’s counsel at trial applied for a direction pursuant to s 132BA of the Evidence Act 1977 (Qld) – where there was a period of three years before the police first interviewed the appellant – where the appellant claims that he lost the opportunity of having his own clothing forensically examined – whether the trial judge erred in failing to give a significant forensic disadvantage direction to the jury pursuant to s 132BA of the Evidence Act 1977 (Qld)

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of three counts of rape (counts 2, 4 and 5) – where the credibility and reliability of the complainant was in issue at the trial – where there were inconsistencies in, and discrepancies between, the complainant’s evidence given at the trial and aspects of the preliminary complaint evidence – where the appellant told lies in the record of interview that were characterised as lies told in consciousness of guilt – whether the verdict is unreasonable or cannot be supported having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was convicted of three counts of rape (counts 2, 4 and 5) – where the appellant was sentenced to nine years’ imprisonment for each count with a serious violent offence declaration for each of counts 4 and 5 – where the appellant was 21 years old at the date of the offending and had a limited prior criminal history – where the complainant was intoxicated and therefore vulnerable, particularly as she was asleep or blacking out in a taxi driven by a co-offender with the appellant as a passenger after it left a nightclub – where the complainant was transferred by the appellant and the co-offender from the taxi to the co‑offender’s private car and taken to an area near a drain – where the appellant aided the co-offender to penetrate the vagina with his penis (count 2) – where the appellant then penetrated the complainant’s anus with his penis without…

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 Lahai

Details

AGLC: R v Lahai [2023] QCA 81
Case: [2023] QCA 81
Decision Date: 28 April 2023

CaseChat Overview and Summary

The appeal was brought by the appellant against his conviction on three counts of rape and against his sentence. The trial judge in the District Court found the appellant guilty on three counts of rape and sentenced him to imprisonment for nine years for each count, with serious violent offence declarations for counts 4 and 5. The appellant challenged the conviction on two grounds: first, that the jury's verdict was unsafe and unsatisfactory, and second, that the trial judge failed to give a significant forensic disadvantage direction to the jury pursuant to s 132BA of the Evidence Act 1977 (Qld). The appellant also challenged the sentence, claiming it was manifestly excessive.

The court considered the evidence presented at trial, including the complainant's preliminary complaint evidence and inconsistencies in her testimony. The court also examined the appellant's lies in his record of interview, which were characterised as lies told in consciousness of guilt. The court found that the jury's verdict was safe and satisfactory, and that there was no error in the trial judge's directions to the jury. The court also considered the appellant's limited prior criminal history and age at the time of the offending, and found that the sentence was not manifestly excessive.

The appeal against conviction was dismissed, and the application for leave to appeal against sentence was refused.

Orders

Orders of the court

1. Appeal against conviction dismissed.

2. Application for leave to appeal against sentence refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

There are two grounds relied on for the appeal against conviction:(a)the verdict of the jury was unsafe and unsatisfactory; and(b)the learned trial judge erred in failing to give a significant forensic disadvantage direction to the jury pursuant s 132BA of the Evidence Act 1977 (Qld) (Act).Relevant evidence Detective Sergeant McGrath was working with Detective Senior Constable MacRae when they were called to a telephone box at Martyn Street, Parramatta Park at about 4.35 am on 6 May 2016. They spoke to the complainant who was dishevelled and emotional and she appeared intoxicated to some degree. Detective McGrath’s evidence that the complainant said she had been raped was preliminary complaint evidence. They transported the complainant to the hospital at Cairns. They obtained the 000 call record for the call made by the complainant at 4.11 am and that was played for the jury. The 000 call was also received as preliminary complaint evidence. In the call, the complainant said, “I got to lift with a taxi driver and he just pulled up on the side and he’s been raping me”. The complainant identified the street she was in. She said that she got raped from two African people who were in the cab “but they want to dump me off, then to drop me off here with the phone booth”. The complainant also told the operator that they took all her money. She described the two Africans as “a fat one and one bony one”. The complainant said “the other one” was already in the cab with the driver when she got in. Detective McGrath obtained CCTV footage from the taxi rank for the Gilligan’s nightclub where the complainant got into the taxi (exhibit 3). The CCTV footage was played for the jury. A photograph was taken from the CCTV footage of a man wearing a blue black singlet with a gold chain around his neck (exhibit 2) which Mr Lahai in a subsequent interview identified was him. Detective McGrath was able to identify the complainant on the CCTV footage. The taxi was identified by Detective McGrath from the CCTV footage as taxi number 99. There was no dispute at the trial that the taxi driver was Mr Johnson. The taxi left the rank shortly after 3 am. Detective McGrath obtained CCTV footage from another angle (exhibit 4) which showed Mr Lahai leaving Gilligan’s and walking out towards Grafton Street and also showed the complainant walking out onto the street. During the investigation, Detective McGrath found out that taxi 99 was fitted with a GPS tracking device and he obtained the data collected from taxi 99 for the early hours of 6 May 2016. The complainant’s former partner gave preliminary complaint evidence of being telephoned early one morning by the complainant who was screaming and crying and told him that “she was raped by these African guys”. Senior Constable Drake had also been sent to the telephone box in response to the complainant’s 000 call. He activated his body worn camera when he spoke to the complainant and the video of those conversations (exhibit 6) which was also preliminary complaint evidence was played to the jury.

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 Lahai [2023] QCA 81
PARTIES:	R v LAHAI, Jacob (appellant/applicant)
FILE NO/S:	CA No 191 of 2021 DC No 54 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Cairns – Date of Conviction: 23 July 2021; Date of Sentence: 5 August 2021 (Morzone KC DCJ)
DELIVERED ON:	28 April 2023
DELIVERED AT:	Brisbane
HEARING DATE:	15 September 2022
JUDGES:	Mullins P, Morrison JA and North J
ORDERS:	1. Appeal against conviction dismissed. 2. Application for leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – OTHER MATTERS – where the appellant was convicted of three counts of rape (counts 2, 4 and 5) – where the appellant’s counsel at trial applied for a direction pursuant to s 132BA of the Evidence Act 1977 (Qld) – where there was a period of three years before the police first interviewed the appellant – where the appellant claims that he lost the opportunity of having his own clothing forensically examined – whether the trial judge erred in failing to give a significant forensic disadvantage direction to the jury pursuant to s 132BA of the Evidence Act 1977 (Qld) CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of three counts of rape (counts 2, 4 and 5) – where the credibility and reliability of the complainant was in issue at the trial – where there were inconsistencies in, and discrepancies between, the complainant’s evidence given at the trial and aspects of the preliminary complaint evidence – where the appellant told lies in the record of interview that were characterised as lies told in consciousness of guilt – whether the verdict is unreasonable or cannot be supported having regard to the evidence CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was convicted of three counts of rape (counts 2, 4 and 5) – where the appellant was sentenced to nine years’ imprisonment for each count with a serious violent offence declaration for each of counts 4 and 5 – where the appellant was 21 years old at the date of the offending and had a limited prior criminal history – where the complainant was intoxicated and therefore vulnerable, particularly as she was asleep or blacking out in a taxi driven by a co-offender with the appellant as a passenger after it left a nightclub – where the complainant was transferred by the appellant and the co-offender from the taxi to the co‑offender’s private car and taken to an area near a drain – where the appellant aided the co-offender to penetrate the vagina with his penis (count 2) – where the appellant then penetrated the complainant’s anus with his penis without…