R v LAK

Case [2018] QCA 30

SUPREME COURT OF QUEENSLAND

CITATION:

R v LAK [2018] QCA 30

PARTIES:

R
v
LAK
(appellant)

FILE NO/S:

CA No 220 of 2017
DC No 234 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Maroochydore – Date of Conviction: 14 September 2017 (McGill SC DCJ)

DELIVERED ON:

9 March 2018

DELIVERED AT:

Brisbane

HEARING DATE:

14 February 2018

JUDGES:

Sofronoff P and Gotterson and Philippides JJA

ORDER:

The appeal against conviction should be dismissed.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – MISCELLANEOUS POWERS OF COURTS AND JUDGES – SUMMING UP – where the appellant was convicted of two counts of indecent treatment of a child under 16, under 12 – where the jury requested part of the complainant’s evidence relating to those counts be replayed – where requested evidence and cross examination evidence replayed – where the primary judge did not warn the jury not to place undue weight on the evidence of the complainant which was replayed – whether failure to give such a direction resulted in a miscarriage of justice

CRIMINAL LAW – PROCEDURE – VERDICT – INCONSISTENT, AMBIGUOUS AND MEANINGLESS VERDICT – where the appellant was charged with four counts of indecent treatment of a child under 16, under 12 – where the appellant was convicted on counts 3 and 4 and acquitted on counts 1 and 2 – whether the verdicts were so inconsistent as to represent a miscarriage of justice

Evidence Act 1977 (Qld), s 93A

Gately v The Queen (2007) 232 CLR 208; [2007] HCA 55, considered
R v Ali[2015] QCA 191, considered
R v DAJ[2005] QCA 40, cited
R v FAE[2014] QCA 69, cited
R v GAO[2012] QCA 54, cited
R v GAW[2015] QCA 166, cited
R v H [1999] 2 Qd R 283; [1998] QCA 348, cited
R v SCG (2014) 241 A Crim R 508; [2014] QCA 118, applied

COUNSEL:

R M O’Gorman for the appellant
G P Cash QC for the respondent

SOLICITORS:

Aitken Whyte Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. SOFRONOFF P:  I agree with Philippides JA.

  2. GOTTERSON JA:  I agree with the order proposed by Philippides JA and with the reasons given by her Honour.

  3. PHILIPPIDES JA:  The appellant was charged with four offences of indecent treatment of a child under 16 and under 12, who was, to the appellant’s knowledge, a lineal descendant.  Each offence charged was a domestic violence offence.  The offences were alleged to have been committed between 28 July and 2 August 2014 when the appellant (the complainant’s paternal grandfather) and his wife (the complainant’s paternal grandmother) were visiting and staying with their son (the complainant’s father) at the Sunshine Coast, Queensland.  The charges alleged indecent treatment by the appellant of his five year old granddaughter as follows:

    ·Count one alleged the appellant put the complainant’s hand on his penis when she climbed into bed to greet him…

Continue reading R v LAK

Sign in free to access the full text

Details
AGLC
R v LAK [2018] QCA 30
Case
[2018] QCA 30
Decision Date

CaseChat Overview and Summary

The case of R v LAK involved the appellant who was convicted on two counts of indecent treatment of a child under 16. The crux of the appeal was the failure of the trial judge to warn the jury not to place undue weight on part of the complainant's evidence that was replayed for them. The appellant argued that this failure resulted in a miscarriage of justice. Additionally, the appellant contested the inconsistency of the verdicts, claiming they were ambiguous and meaningless.

The court had to determine whether the trial judge’s omission to warn the jury about the replayed evidence constituted a miscarriage of justice and whether the verdicts were inconsistent to the extent of being a miscarriage of justice. The court examined the necessity of such a warning based on the circumstances of the case, including the character and length of the replayed evidence, the stage of the jury's deliberations, and the nature of the defence's case.

The court concluded that the failure to warn the jury not to place undue weight on the replayed evidence did indeed result in a miscarriage of justice. The court found that the jury's decision to convict on the counts relating to the replayed evidence and acquit on the counts concerning the non-replayed evidence underscored the risk that the jury placed undue emphasis on the replayed parts of the complainant's evidence. Additionally, the court found that the verdicts, while seemingly inconsistent, were not so ambiguous as to represent a miscarriage of justice.

The court dismissed the appeal against conviction.

Orders

Orders of the court

The appeal against conviction should be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Also during the second interview, the complainant described an incident she said occurred while the complainant and appellant were sitting outside a bakery near the Coolum Woolworths waiting for her father and paternal grandmother, who were shopping. The complainant said that the appellant took his penis out of his pants and put her hand on it. The alleged incident outside the shops constituted count 2.Evidence related to the balcony incident (counts 3 and 4) The complainant’s evidence was that she and the appellant were seated on the balcony when the appellant put his penis outside of his shorts. He then grabbed her left hand and put it on his penis. He quickly removed her hand when her paternal grandmother and father came outside. The complainant said that when they returned inside, the appellant grabbed her hand again and put it back on his penis. The appellant’s wife gave evidence that she and the appellant stayed with their son and his partner between 29 July and 2 August 2014. She said she saw the complainant on the third night of their visit (a Thursday) and briefly the next morning when the complainant stayed over at her son’s house. The appellant’s wife was present when the complainant was dropped off at her father’s house after school on the Thursday. She gave evidence that that night the complainant stayed at the house. She, the appellant, their son, his partner and her two boys were there also. They had a barbeque dinner on the deck that her son prepared. She did not help with dinner; she “got waited on”. She said that she and the appellant remained out on the deck the whole evening. She did not go inside the house at any stage. She was also there when the complainant went to bed. She said she did not see any exchange between the appellant and complainant on that evening. The complainant’s father gave evidence that his parents visited the house he shared with his partner and her two sons in July 2014. He said that his parents stayed at the house for only one or two nights in a spare room at the front of the house. The complainant visited the house on the Tuesday and Thursday night. He could not remember if she stayed the night on Tuesday, but said she did stay on Thursday night and he took her to school the next morning. His parents were present when the complainant arrived on the Thursday. He said that that night, he, his parents, the complainant, his partner and her two sons had a barbeque on the deck and that everyone was involved in preparing dinner. He had the complainant under his observation for “most” of the time, “mainly to ensure that she was behaving and not getting overexcited because she was excited that Nana and Pop were visiting”. He did not see anything about the appellant’s interactions with the complainant that disturbed him. He said that, during the day, the appellant had helped him work on a retaining wall and that he had observed that the appellant was not wearing underwear under his shorts.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The failure to give a warning not to place undue weight on the replayed evidence resulted in a miscarriage of justice. The real risk that the jury placed undue weight on the replayed parts of the complainant’s evidence was highlighted by the fact that the appellant was convicted on the counts which related to the replayed evidence and acquitted on the counts concerning the evidence which was not replayed. Further, as in SCG, while defence counsel did not seek the warning, there was no forensic advantage in refraining to seek the warning and so that omission ought not prevent a conclusion that there was a miscarriage of justice.[18][18]SCG at [30]-[33].Consideration The authorities establish that where all or part of the complainant’s evidence is replayed to the jury after they have retired, it is desirable that the jury be warned not to give undue weight to that evidence and, where applicable, to remind the jury of evidence called by the defendant.[19] The giving of such a direction is not, however, an immutable standard.[20] As was emphasised in Gately, whether such a direction is necessary depends on the circumstances of the particular case.[21] The overriding consideration is whether fairness and balance gives rise to the need to guard against the risk that undue weight might be given to a complainant’s evidence where it is played a second time without a warning, or where no reminder is given to the jury about the competing evidence or considerations relied on by the defence.[22][19]FAE at [24]; SCG at [35]-[36].[20]SCG at [35] per Morrison JA with whom the other members of the Court agreed.[21]Gately at [96].[22]SCG at [35] per Morrison JA with whom the other members of the Court agreed. See Gately at [96]. Ensuring fairness and balance may give rise to particular difficulties in emotive sexual cases which are particularly likely to arouse feelings of prejudice in the jury.[23] Factors that will be relevant include those identified in SCG, namely, the time that has elapsed after completion of the defence evidence; the time that has elapsed since the conclusion of the summing up; the character of the complainant’s evidence, including the manner in which it is given; the course of the trial, in particular the stage of deliberations that the jury has reached; and the length of time that the relevant evidence occupies.[23]GAO at [20]. In the present case, as the respondent submitted, the jury did not ask for and did not see the entire evidence of the complainant. The portion replayed to the jury was of relatively short compass concerning a specific aspect of her evidence relating to the balcony incidents the subject of counts 3 and 4. Unlike R v Ali,[24] the jury also heard the relevant portion of cross examination evidence. There was no sworn denial by the appellant to be weighed against the evidence in the prosecution case by the jury as the appellant did not give evidence. While the appellant’s version was nevertheless before the Court in the form of the statements and denials he made in his police interviews, it provided some support for the prosecution case on counts 3 and 4 in that the appellant admitted to an incident where there was touching of his penis by the complainant, albeit that its indecent nature was disputed. Indeed, this was a case where the failure by defence counsel at trial to ask that the jury be reminded of the appellant’s explanation can be understood as a sound forensic decision. As mentioned, the appellant had given an account to the complainant’s mother and to the police in which he said no deliberate indecent touching had occurred. His version of the incidents that concerned counts 3 and 4 was that the complainant did touch his penis but that that occurred when the complainant accidentally saw his exposed penis and touched or grabbed it herself. There was said to be some support for the appellant’s version in the evidence of his son that he had not been wearing underwear under his shorts. There was nonetheless difficulties attendant in drawing attention to the appellant’s account, given his admissions. It was an altogether understandable strategy to avoid them being highlighted by requiring the trial judge to reiterate the appellant’s version. In the circumstances, it is not apparent that it was to the appellant’s advantage to remind the jury of his version.[24][2015] QCA 191 at [19]-[25].