R v LAJ - [2017] QCA 268

SUPREME COURT OF QUEENSLAND

CITATION:

R v LAJ [2017] QCA 268

PARTIES:

R
v
LAJ
(appellant)

FILE NO/S:

CA No 45 of 2017
DC No 44 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Beenleigh – Date of Conviction: 8 March 2017 (Chowdhury DCJ)

DELIVERED ON:

10 November 2017

DELIVERED AT:

Brisbane

HEARING DATE:

30 October 2017

JUDGES:

Sofronoff P and Morrison JA and Brown J

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted after trial of one count of rape – where the complainant was three years old at the time of the offence – where the appellant was convicted seven years after the offence – where the appellant appeals the conviction on the ground that it is unreasonable and cannot be supported by the evidence – where the appellant contended that there were key areas of inconsistency – where the appellant identified those inconsistencies – where the respondent submitted that the complainant’s account was consistent, and plausible – where the respondent highlighted that the complainant’s evidence was consistent with preliminary complaints – where the jury were directed on the issues of inconsistency – whether a review of the evidence reveals that the guilty verdict is unreasonable or insupportable – whether it was open to the jury to convict the appellant of rape

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES – IMPROPER ADMISSION OF EVIDENCE – where members of the complainant’s family gave evidence of preliminary complaints – where the complainant’s father gave evidence that the complainant told him the appellant wanted ‘them’ to suck him off – where the appellant now challenges the admission of that evidence on the basis that the word ‘them’ led to a miscarriage of justice – where the appellant now contends that the statement should have been excluded from evidence, or the learned trial judge should have given directions as to that evidence or discharged the jury – where the respondent submitted that the word ‘them’ was not capable of being prejudicial – where no application for redirection was made before the learned trial judge – whether the word ‘them’ caused the jury to speculate impermissibly – whether the evidence was prejudicial – whether there has been a miscarriage of justice caused by admission of the evidence, or a failure to direct on the evidence or discharge the jury

Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A(2)

Darkan v The Queen (2006) 227 CLR 373; [2006] HCA 34, followed
De Jesus v The Queen (1986) 61 ALJR 1; (1986) 68 ALR 1; [1986] HCA 65, cited
Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, cited
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, followed
R v Baden-Clay (2016) 258 CLR 308; [2016]…

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 LAJ

Details

AGLC: R v LAJ [2017] QCA 268
Case: [2017] QCA 268
Decision Date: 10 November 2017

CaseChat Overview and Summary

The appellant, LAJ, was convicted of one count of rape and appealed against the conviction on the basis that it was unreasonable and insupportable having regard to the evidence. The appeal was heard in the Queensland Court of Appeal. The complainant, Z, was three years old at the time of the offence, and the appellant was convicted seven years later. The appeal raised issues regarding the reasonableness of the jury’s verdict, the consistency of Z’s evidence, and the impact of certain evidence on the trial’s outcome.

The court considered whether the jury’s verdict was unreasonable or insupportable in light of the evidence. The appellant argued that there were key areas of inconsistency in Z’s evidence, which the jury should have considered. The court examined Z’s evidence and found that it was consistent and plausible. The court also considered the preliminary complaints made by Z’s family members, which were consistent with Z’s account. The jury was properly directed on the issues of inconsistency, and the court found that it was open to the jury to convict the appellant based on the evidence presented.

The court further addressed the appellant’s challenge to the admission of certain evidence, particularly the use of the word “them” in a statement made by Z’s father, D. The appellant contended that the word “them” led to a miscarriage of justice, as it caused the jury to speculate impermissibly. The respondent argued that the word “them” was not prejudicial and that there was no failure to direct on the evidence or discharge the jury. The court found that the word “them” did not cause the jury to speculate impermissibly and did not result in a miscarriage of justice.

The appeal was dismissed, and the conviction was upheld. The court found that the evidence was sufficient to support the jury’s verdict and that there was no miscarriage of justice. The court also found that the admission of the evidence, including the word “them”, did not prejudice the appellant or affect the outcome of the trial.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The principal witness at the trial was Z. Preliminary complaint evidence came from her family members (her grandmother, X; her sister, Q; and her father, D), as well as from P, a family support officer. There were two formal admissions.Z’s evidence Z’s evidence was given by way of a statement admitted under s 93A of the Evidence Act 1977 (Qld) and pre-recorded evidence under s 21AK of that Act. Z was seven years old when she was interviewed by police. She said that when she was three, the appellant was looking after her while her parents had gone shopping. She said she was still in bed. She described the incident as: “He put his rudy in my mouth and put vegemite on it”. When she was asked what happened next, she said “I can’t remember anything else actually”, but “That’s what I could remember”. She identified the appellant by his name, and as the person who lived in a van in their back yard, and who used to eat with them occasionally. She was asked to identify what a “rudy” was, and after some hesitation she used the word “doodle”. Her subsequent answers made it clear that she was identifying the appellant’s penis. When asked for further details about the conduct she said “I don’t remember everything we were doing but I remember most of it”. She said the appellant “got the vegemite out of the cupboard and put it on there”, and then, as to what happened next, “he put it in there”. She did not say anything to him and did not know whether he had said anything to her. She said she had told her grandmother, who then told her parents. When asked what she told her grandmother she said “Well I only told her the yucky bit”. When asked to explain where she was, and reminded that she had originally said that she was “still in bed”, she explained that this was “near the kitchen”. She gave a description of the layout of the house, including whose room was where inside. She said the appellant was wearing clothes but said “I can’t remember what clothes”. She then identified that he had taken the Vegemite from a “little cupboard on top of this big cupboard”. Then, when asked to explain how he put the Vegemite on, given that he was wearing clothes, she said “I don’t remember that bit either … He must have tooken his pants off”. Having explained that she was three years old when it occurred, she was asked how she knew that was her age at the time. She replied: “I remember most of the things that happened and I was only a bit little”. She was asked what her grandmother had told her parents, answering “everything I told her … the yucky bit … just that bit and I told you more but … I didn’t really say anything about it …” She was asked if anything like that had ever happened at another time, answering “No”. She was then asked whether the appellant had touched her anywhere else, answering “Not really”, and when asked to explain what she meant by that answer, said “No”.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v LAJ [2017] QCA 268
PARTIES:	R v LAJ (appellant)
FILE NO/S:	CA No 45 of 2017 DC No 44 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Beenleigh – Date of Conviction: 8 March 2017 (Chowdhury DCJ)
DELIVERED ON:	10 November 2017
DELIVERED AT:	Brisbane
HEARING DATE:	30 October 2017
JUDGES:	Sofronoff P and Morrison JA and Brown J
ORDER:	The appeal is dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted after trial of one count of rape – where the complainant was three years old at the time of the offence – where the appellant was convicted seven years after the offence – where the appellant appeals the conviction on the ground that it is unreasonable and cannot be supported by the evidence – where the appellant contended that there were key areas of inconsistency – where the appellant identified those inconsistencies – where the respondent submitted that the complainant’s account was consistent, and plausible – where the respondent highlighted that the complainant’s evidence was consistent with preliminary complaints – where the jury were directed on the issues of inconsistency – whether a review of the evidence reveals that the guilty verdict is unreasonable or insupportable – whether it was open to the jury to convict the appellant of rape CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES – IMPROPER ADMISSION OF EVIDENCE – where members of the complainant’s family gave evidence of preliminary complaints – where the complainant’s father gave evidence that the complainant told him the appellant wanted ‘them’ to suck him off – where the appellant now challenges the admission of that evidence on the basis that the word ‘them’ led to a miscarriage of justice – where the appellant now contends that the statement should have been excluded from evidence, or the learned trial judge should have given directions as to that evidence or discharged the jury – where the respondent submitted that the word ‘them’ was not capable of being prejudicial – where no application for redirection was made before the learned trial judge – whether the word ‘them’ caused the jury to speculate impermissibly – whether the evidence was prejudicial – whether there has been a miscarriage of justice caused by admission of the evidence, or a failure to direct on the evidence or discharge the jury Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A(2) Darkan v The Queen (2006) 227 CLR 373; [2006] HCA 34, followed De Jesus v The Queen (1986) 61 ALJR 1; (1986) 68 ALR 1; [1986] HCA 65, cited Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, cited M v The Queen (1994) 181 CLR 487; [1994] HCA 63, followed R v Baden-Clay (2016) 258 CLR 308; [2016]…