R v Latsamyvong

Case [2017] QCA 174

SUPREME COURT OF QUEENSLAND

CITATION:

R v Latsamyvong [2017] QCA 174

PARTIES:

R
v
LATSAMYVONG, Daosadet Tao
(appellant)

FILE NO/S:

CA No 233 of 2016
DC No 349 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Cairns – Date of Conviction: 5 April 2016 (Martin SC DCJ)

DELIVERED ON:

18 August 2017

DELIVERED AT:

Brisbane

HEARING DATE:

9 June 2017

JUDGES:

Fraser and Gotterson JJA and Boddice J

ORDER:

The appeal be dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION OR NON-DIRECTION – VERDICT AGAINST EVIDENCE OR WEIGHT OF EVIDENCE – INCONSISTENCY BETWEEN FINDINGS OF JURY – where a jury found the appellant guilt of one count of torture, two counts of common assault, three counts of assault occasioning bodily harm, one count of sexual assault, one count of observations or recordings in breach of privacy and two counts of grievous bodily harm – where the jury found the appellant not guilty of three counts of common assault and one count of assault occasioning bodily harm – where the appellant contends that the trial judge erred in failing to direct the jury in relation to s 24 of the Criminal Code (Qld) – where the appellant contends that the findings of the jury were contrary to the evidence as a whole – where the appellant contends that the verdicts of guilty are inconsistence with the findings of not guilty on the other counts – whether the appellant should succeed in his appeal

Criminal Code (Qld), s 24

MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, applied
R v Clapham[2017] QCA 99, cited
R v GAW[2015] QCA 166, cited

COUNSEL:

The appellant appeared on his own behalf
T A Fuller QC for the respondent

SOLICITORS:

The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

  1. FRASER JA:  I agree with the reasons for judgment of Boddice J and the order proposed by his Honour.

  2. GOTTERSON JA:  I agree with the order proposed by Boddice J and with the reasons given by his Honour.

  3. BODDICE J:  On 1 August 2016, the appellant pleaded not guilty to one count of torture (Count 1), five counts of common assault (Counts 2, 5, 12, 13 and 14), three counts of assault occasioning bodily harm (Counts 3, 6 and 7), one count of assault occasioning bodily harm whilst armed (Count 4), one count of sexual assault (Count 8), one count of observations or recording in breach of privacy (Count 9) and two counts of grievous bodily harm (Counts 10 and 11).  Each count was alleged to be a domestic violence offence.

  4. On 5 August 2016, the jury returned verdicts of guilty of one count of torture (Count 1), two counts of common assault (Counts 12 and 13), three counts of assault occasioning bodily harm (Counts 3, 6 and 7), one count of sexual assault (Count 8), one…

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AGLC
R v Latsamyvong [2017] QCA 174
Case
[2017] QCA 174
Decision Date

CaseChat Overview and Summary

The case of R v Latsamyvong involved the appellant appealing his conviction on various charges, including torture, assault, and sexual offences. The appellant argued that the trial judge had erred in not directing the jury about section 24 of the Criminal Code, and that the jury's findings were inconsistent with the evidence presented. The case was heard and determined by the Queensland Court of Appeal.

The primary legal issues before the court were whether the trial judge had erred in not directing the jury regarding section 24 of the Criminal Code, and whether the jury's verdicts were inconsistent or contrary to the weight of the evidence. The court was also required to consider whether the appellant's appeal should succeed based on these grounds.

The Queensland Court of Appeal found that the trial judge had not erred in not directing the jury about section 24 of the Criminal Code, as the evidence did not support such a direction. The court also determined that the jury's verdicts were not inconsistent or against the weight of the evidence. The court held that there was no basis to set aside the verdicts of guilty, and therefore, the appeal was unsuccessful. The court dismissed the appeal and upheld the appellant's convictions.

In conclusion, the Queensland Court of Appeal dismissed the appellant's appeal, finding no merit in his contentions that the trial judge had erred in not directing the jury, and that the jury's findings were inconsistent with the evidence. The court upheld the appellant's convictions on the various charges, including torture, assault, and sexual offences.

Orders

Orders of the court

The appeal be dismissed.

Background

Background to the litigation

The appellant appeals his conviction. The only ground of appeal listed in the notice of appeal is that the trial Judge erred in failing to direct the jury in relation to s 24 of the Criminal Code. However, the appellant’s outline contends the findings of the jury were contrary to the evidence as a whole. Further, the verdicts of guilty were inconsistent with the jury having found him not guilty of other counts on the indictment.Background The appellant was born on 1 May 1976. The female complainant was born on 1 April 1981. At the time of the offences they were in a relationship. That relationship had commenced in late October/early November 2014. All of the offences were committed between 1 November 2014 and 10 January 2015.Crown case In respect of count 1, torture, the Crown relied upon the incidents the subject of the remaining counts in support of a contention that the conduct of the appellant throughout the relationship evidenced the appellant intentionally inflicted severe pain and suffering on the complainant such as to constitute torture. Count 2, common assault, related to an event in mid to late November at a park on McKenzie Street, Cairns. The appellant put a belt around the complainant’s neck and pulled it tight causing her to lose consciousness. Count 3, assault occasioning bodily harm, related to an event in the last week of November 2014 at a carpark on The Esplanade at Cairns. The appellant punched the complainant in the eye and across her nose after the complainant had asked for a cigarette from some backpackers. Count 4, assault occasioning bodily harm while armed, related to an event in the first week in December 2014 at a carpark on The Esplanade at Cairns. The appellant punched the complainant in the stomach, held a knife against her throat, causing a minor cut, cut the complainant’s clothes off and dragged her along the ground and into a puddle. Count 5, common assault, related to an event on a date unknown but after the occasions relied upon in counts 3 and 4, at Buchans Point. The appellant poured petrol over the complainant and held a cigarette lighter near her threatening to set her alight. Count 6, assault occasioning bodily harm, related to an event on or about 13 December 2014 at the Rainbow Inn at Cairns. The appellant headbutted the complainant, hitting the bridge of her nose causing it to bleed. Count 7, assault occasioning bodily harm, related to an event on or about 14 December 2014 at the Rainbow Inn at Cairns. The appellant headbutted and punched the complainant to the head causing her nose to bleed. Count 8, sexual assault, related to an event at the Rainbow Inn between 12 and 15 December 2014. The appellant urinated on the complainant and slapped her to the head. This incident was recorded on the appellant’s phone. Count 9, recordings in breach of privacy, related to the same event. The appellant, without the complainant’s consent, recorded the genital region of the complainant. Count 10, grievous bodily harm, related to an event near Glenoma Park in Cairns on a date unknown in December but after the Rainbow Inn incidents. The appellant caused serious disfigurement to the complainant by cutting star shapes into her buttocks with a knife.

Evidence

Evidence Before The Court

Count 14, common assault, related to an event at the appellant’s unit around the end of December 2014. The appellant pushed the end of a barbeque lighter into the complainant’s left eye.Complainant’s evidence The complainant gave evidence that she had known the appellant for a couple of years prior to commencing a sexual relationship with him towards the end of October or the start of November 2014. She knew the appellant by the name “Star”. He was her drug dealer. Initially the relationship was okay. It was “just sex”.[1] After the first week or two of their relationship it became violent. The violence became more frequent over time.[1]AB 18/30. The complainant said she never lived with the appellant. They retained separate bank accounts and separate keycards. However, the appellant forcibly took her keycard so that he could control her money. He made her change her Centrelink password and the pin number on her card. When she needed money, the appellant would hand over her keycard and tell her what to get. He would sit in the car and watch her. In order to buy something, the complainant would “grovel on the ground”.[2][2]AB 19/10. The complainant recalled an occasion when the appellant asked her to meet him at the Bendigo Bank in Cairns. The appellant sent her to buy a carton of beer. They sat and drank together. They then walked to a park and had sex. They continued drinking together. At one point they argued. The appellant removed his belt and put it around the complainant’s neck. The complainant could remember the appellant pulling the belt extremely tight around her neck so she could not breathe. It was only a few seconds before she became unconscious. The complainant next remembered being shaken by a man trying to wake her up. She was on the road. She got off the roadway and saw her handbag had been strewn all over the road. She collected her possessions and proceeded home to the flat she shared with her ex-partner Adam and their daughter. When she left the area neither the appellant nor his motor vehicle were there. As she was crossing a railway line in a dark area she was yanked from behind by four young men. They dragged her over a fence and tried to part her legs. She fought them off and managed to get away. When she arrived home the complainant told Adam what had happened with the four young men. She did not tell him about what had happened with the appellant. The complainant said Adam convinced her to go to the doctor the next day. She had considerable bruising on the inside of both her thighs, groin and knee. Her jaw was also quite sore. The complainant met with the appellant later that day. She asked the appellant what had happened last night. The appellant told her he had choked her until she had fallen unconscious and her head had fallen behind his motor vehicle. The appellant had a “sort of psychotic chuckle”[3] about the fact that he was going to reverse over her head.[3]AB 22/32. The complainant said the next occasion the appellant was violent towards her was less than a week later. They had been swimming near The Esplanade. They obtained some alcohol and sat drinking at the very end of the carpark. The complainant said something which upset the appellant. The appellant punched her to the face. The complainant fell to the ground. The appellant was yelling at her to get up. He said if she did not get up he was going to kick her. The appellant then swung his foot at her face. He was wearing steel cap boots. The complainant moved quickly so as to avoid the appellant’s boot. The complainant said she suffered swelling to her jaw around her cheek area. She went to the doctor the following day. She told the doctor the appellant had assaulted her.

Decision

Reasons for decision

This ground of appeal also fails.Conclusions No basis has been established to set aside the verdicts of guilty.Orders I would order that the appeal be dismissed.

Ratio Decidendi

Legal Principle Established

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