R v Las

Case [2021] QCA 65

SUPREME COURT OF QUEENSLAND

CITATION:

R v LAS [2021] QCA 65

PARTIES:

R
v
LAS
(appellant)

FILE NO/S:

CA No 47 of 2020
DC No 110 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Appeal Against Conviction

ORIGINATING COURT:

District Court at Townsville – Date of Conviction: 4 March 2020 (Coker DCJ)

DELIVERED ON:

9 April 2021

DELIVERED AT:

Brisbane

HEARING DATE:

30 September 2019

JUDGES:

Morrison and Philippides JJA and Wilson J

ORDERS:

1.    Allow the appeal.

2.    Set aside the convictions and order a retrial.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where evidence consisted of pre-recorded evidence and a police transcript of two child complainants admitted under s 21AK and s 93A of the Evidence Act 1977 (Qld) – whether that evidence contained inconsistencies to the extent that there was a significant possibility that the appellant was wrongly convicted – whether evidence contained in the pre-recorded evidence and police transcript was prejudicial to the appellant because of alleged inconsistencies – whether the police interview contained leading questions – whether the verdict was unreasonable

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – JOINT TRIAL OF SEVERAL COUNTS – where the appellant was charged on six counts, two being against one complainant and four being against another complainant – whether the learned trial judge erred in failing to direct the jury about the use of evidence of other offences or misconduct against each complainant – whether evidence of sexual contact with multiple complainants was cross-admissible – where defence counsel did not seek redirections – where no application was made during trial to exclude the evidence of one complainant on the basis that it was not cross-admissible against the other complainant – whether the learned trial judge erred in directing the jury about uncharged sexual interest evidence – where a direction against propensity reasoning was given in respect of uncharged acts but not in respect of charged acts – whether the learned trial judge erred in giving no directions on the use which could or could not be made of one complainant’s evidence in the case involving the other complainant – whether a retrial should be ordered

Evidence Act 1977 (Qld), s 21AK, s 93A

Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12, applied
Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7, applied
Phillips v The Queen (2006) 225 CLR 303; [2006] HCA 4, applied
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, applied
R v CBM [2015] 1 Qd R 165; [2014] QCA 212, applied
R v HAB[2006] QCA 80, applied
R v Sun[2018] QCA 24, cited
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, applied

COUNSEL:

C K Copley for the appellant
G J Cummings for the respondent

SOLICITORS:

Martin Law for the…

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AGLC
R v Las [2021] QCA 65
Case
[2021] QCA 65
Decision Date

CaseChat Overview and Summary

The appellant was convicted of various sexual offences against two child complainants, Joe and Tim, and appealed against his conviction and sentence. The appeal was heard in the Queensland Court of Appeal. The appellant contended that the jury's verdict was unreasonable or insupportable having regard to the evidence, and that the trial judge misdirected the jury in relation to the use of evidence of other offences or misconduct against each complainant, among other grounds.

The court considered whether the evidence contained inconsistencies to the extent that there was a significant possibility that the appellant was wrongly convicted, and whether the verdict was unreasonable. The court also considered whether the trial judge erred in failing to direct the jury about the use of evidence of other offences or misconduct against each complainant, and whether the trial judge erred in giving no directions on the use which could or could not be made of one complainant’s evidence in the case involving the other complainant. The court found that the evidence of the complainants contained inconsistencies and inadequacies that went to their credit, and that the trial judge erred in failing to give appropriate directions to the jury in relation to the use of evidence of other offences or misconduct against each complainant. The court concluded that the appellant's success on these grounds warranted a retrial.

The court allowed the appeal, set aside the convictions, and ordered a retrial. The judges agreed with the reasons given by Morrison JA. The ratio of the case was that the evidence of the complainants contained inconsistencies and inadequacies that went to their credit, and that the trial judge failed to give appropriate directions to the jury in relation to the use of evidence of other offences or misconduct against each complainant.

Orders

Orders of the court

1. Allow the appeal.

2. Set aside the convictions and order a retrial.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The High Court restated the pre-eminence of the jury in R v Baden-Clay.[3] As summarised by this Court recently in R v Sun,[4] in Baden-Clay the High Court stressed that the setting aside of a jury’s verdict on the ground that it is unreasonable is a serious step, because of the role of the jury as “the constitutional tribunal for deciding issues of fact”,[5] in which the court must have “particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.”[6]The evidence[3](2016) 258 CLR 308 at [65]-[66]; [2016] HCA 35; internal citations omitted.[4][2018] QCA 24 at [31].[5]Citing Hocking v Bell (1945) 71 CLR 430 at 440; [1945] HCA 16.[6]Baden-Clay at 329, citing M v The Queen at 494, and MFA v The Queen (2002) 213 CLR 606 at 621-622 [49]-[51], 623 [56]; [2002] HCA 53.Interview with Tim Tim was six years old when he was interviewed by police. His evidence consisted of the police transcript admitted under s 93A of the Evidence Act 1977 (Qld), and his pre-recorded evidence admitted under s 21AK of that Act. In the course of his police interview Tim said:(a)he, Joe and the appellant were in the shower when the appellant “accidentally peed in my mouth”;[7] he got out of the shower and wiped his mouth; he was trying to get a drink of water from the shower when the appellant accidentally peed in his mouth;[7]Appeal Book (AB) 124.(b)when asked to tell the police more about that, Tim said that when it happened he got out of the shower and nothing else happened;[8] at the time the other children in the family were playing in the backyard, which he knew because he joined them to play once he had got out of the shower;[9][8]AB 131.[9]AB 132.(c)shortly thereafter Tim expanded on his account saying that they arrived home with the appellant and when they got out of the car the appellant proposed that the three of them have a shower; they did so and “that’s when [the appellant] peed in my mouth” … “[the appellant] needed to pee and he peed where I was gonna’ get a drink and peed so high and it accidentally peed in my mouth”;[10][10]AB 134.(d)when they were in the shower he knew that the appellant needed to pee because “first he done a little pee and … it went onto my hand then I knew he was going to do a big one”;[11][11]AB 137.(e)he said “it tastes gross”,[12] and was a dark colour; he added that it tasted “like the little bit, like off lemon”;[13][12]AB 137.[13]AB 138.(f)questioning then turned to whether the appellant had made Joe do something to the appellant; as to that, having initially said he did not know what it was, and having been prompted that it was the time that the appellant made Joe suck his penis,[14] Tim responded, “Oh he made me suck Joe’s dick more” and “And he said, and oh, and I didn’t wanna’ do that … I don’t wanna do and then … [the appellant] just like this, push, push and [INDISTINCT] and then yeah. I, I just pulled back and he just pushed me. I couldn’t get any breathe”;[15][14]The subject of count 4.[15]AB 139.(g)he continued the narrative saying that the appellant “always makes Joe … suck my thing. I call it willy”;[16][16]AB 139.(h)he referred to the appellant making Tim clean up his room, even though the mess had been made by Joe, and how the appellant “gives you three minutes to clean up the bedroom”, and agreed to the police officers prompting that if it was not clean the appellant made Tim suck Joe’s willy;[17][17]AB 140.(i)Tim went on to say that the appellant made them do it and smacked him if he did not suck Joe’s willy;[18] he said it happened first when they were in Townsville and he thought that he was four when that happened;[19][18]AB 141-142.[19]AB 144.(j)Tim described the appellant telling him to suck on Joe’s willy and forcing him to do so by “pushing my head”;[20][20]AB 146-147.(k)he said he was made to suck Joe’s willy “a lot of times”;[21][21]AB 148.(l)right at the end of the police interview Tim was taken to the matters the subject of count 2 and this exchange ensued:“POLICE:And has [the appellant] ever made you suck, made you suck his willy?Tim:That? I think yes or no, only [INDISTINCT], made me, only one time he made me.POLICE:Only one time, oh okay, well tell me about that one time.Tim:Oh well that’s when [INDISTINCT]. Ah I don’t know if we were or we weren’t.…POLICE:So tell us about that time, what happened then?Tim:Nothink else.POLICE:Okay. Do you remember it, anything about that time?Tim:Nah.”[22][22]AB 149.Tim’s pre-recorded evidence

Decision

Reasons for decision

In light of the conclusion that I have reached above in respect of ground 2, it is unnecessary to deal with the other grounds which submitted that proposed errors of one sort or another leading to a miscarriage of justice. Each of those grounds, if successful, would lead to a retrial, which is the result of the appellant’s success on ground 2. Further, if there is to be a new trial, the matters the subject of agitation in proposed grounds 3 and 4 will not necessarily arise again.Conclusion and disposition of the appeal Given that ground 1 has failed, the appropriate order is that there be a retrial. I propose the following orders:1.Allow the appeal.2.Set aside the convictions and order a retrial. PHILIPPIDES JA: I agree with the orders proposed by Morrison JA for the reasons given by his Honour. WILSON J: I agree with the reasons of Morrison JA.

Ratio Decidendi

Legal Principle Established

The only relevant admissions were of the ages of Joe (May 2011) and Tim (July 2012).Ground 1 – unreasonable verdict - consideration The appellant’s contentions in respect of this ground were essentially that the evidence of Tim and Joe contain so many discrepancies, inadequacies, and otherwise lacked probative force, that there was a significant possibility that the appellant was wrongly convicted. In this respect the appellant’s outline drew attention to various aspects where the evidence of Tim differed from that of Joe, the evidence of each changed in some way, matters that were said to go to the credit of Tim and Joe, inconsistencies between the evidence of Tim and Joe on the one hand and that of their mother on the other, and prejudicial material that made its way into the evidence. Examples of these matters include the following:(a)the difference between Tim and Joe in relation to count 1, where Tim’s evidence was that the event occurred in the shower, whereas Joe gave evidence of another occasion which occurred in the open area of the house outside the bedrooms, which Joe referred to as “the hallway”;(b)the varying ways in which Tim’s evidence as to count 2 came out, and the fact that Joe gave evidence as to count 2 but did not say that he had actually seen it;(c)Tim did not give evidence about count 3, whereas Joe did;(d)on count 4, Tim’s evidence was said to be “equivocal” and in response to the police leading him on the topic;(e)on counts 5 and 6 Tim gave no evidence about those offences, whereas Joe did;(f)the mother gave no particular evidence of preliminary complaint beyond count 1, whereas Joe said he told his mother about count 3;(g)the preliminary complaint evidence from the great-aunt and great-uncle was limited to counts 1, 2 and 4;(h)Tim gave evidence about other conduct on the part of the appellant towards both boys, which was not corroborated by Joe, particularly focusing on the frequency with which the two boys were made to suck each other’s penises;(i)there was evidence by Joe about other conduct by the appellant, not corroborated by Tim; this was said to include allegations of penile anal rape of both boys, and between the two boys, putting his tongue in Joe’s mouth, putting his bottom in the sister’s face, telling the boys to urinate on the sister and digitally raping Tim;(j)some allegations were raised for the first time in cross-examination, such as Tim giving evidence that the appellant made them lick or wipe his feet, the variation in occasions when Tim said he was forced to suck Joe’s penis, and the suggestion of putting his bottom in his sister’s face;(k)there was evidence of a motive to lie because the boys resented the appellant as being “mean” and disliked being disciplined by him;(l)the boys were competitive so that when Joe was asked about count 1 (regarding Tim) he responded by saying that the events had happened to him more often than in the case of Tim, and similarly with count 4; the competitive demeanour was said to extend to “dobbing” each other in;(m)matters to do with the credit of each of Tim and Joe, focusing on the police interview, including memory lapses, accounts of various events peripheral to the particular acts, a variable account of what the mother observed and the difference in respect of count 1 (in the shower or not); and(n)matters touching on the credit of Joe, again including suggested memory lapses, that he was not a clear narrator, his difficulties with accounting for time including days of the week, variations in his evidence about the colour of the house, evidence where he suggested he had spoken to a ghost, his adoption of the suggested use of boiling a kettle as a means of estimating time which Joe allegedly added in as a detail which actually occurred, discrepancies about where certain events occurred and who was nearby and discrepancies in how things occurred.