R v Lau

Case [2022] QCA 37

SUPREME COURT OF QUEENSLAND

CITATION:

R v LAU [2022] QCA 37

PARTIES:

R
v
LAU
(appellant/applicant)

FILE NO/S:

CA No 251 of 2020
CA No 29 of 2021
DC No 591 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Townsville – Date of Conviction: 30 October 2020; Date of Sentence: 5 November 2020 (Lynham DCJ)

DELIVERED ON:

18 March 2022

DELIVERED AT:

Brisbane

HEARING DATE:

3 November 2021

JUDGES:

McMurdo JA and Boddice and Henry JJ

ORDERS:

1.    Leave to adduce further evidence be refused.

2.    The appeal against conviction be dismissed.

3.    Leave to appeal against sentence be refused.

4.    The application for bail be dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where the appellant was convicted of three counts of rape and a contravention of a domestic violence order – where the appellant was found not guilty in respect of one count of rape and one count of contravention of a domestic violence order – where the appellant submits that a miscarriage of justice occurred when the trial Judge failed to discharge the jury upon the impermissible use of the domestic violence evidence in the address of the Crown prosecutor – where the Crown prosecutor and defence counsel agreed on the proposed direction to be given in respect of that evidence – where the Crown prosecutor’s address was consistent with those directions and unexceptionally relied on what were clear inconsistencies in the appellant’s account at trial – whether evidence as to past domestic violence in the course of the relationship between the appellant and the complainant was relevantly placed before the jury

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant submits that a miscarriage of justice occurred as the jury’s verdicts of guilty on Counts 3, 4, 5 and 7 were inconsistent with their verdicts of not guilty on Counts 1, 2 and 6 – where the appellant submits each count relied on the credibility and reliability of the complainant and the jury’s rejections of her account of rape, in respect of Counts 1 and 6, support a conclusion that the complainant lacked such credibility and reliability as to warrant findings of not guilty in respect of each count – where the respondent submits there is no inconsistency in the jury’s verdicts of not guilty of Counts 1, 2 and 6 to their verdicts of guilty of the remaining counts – where the respondent submits a jury may well have accepted the complainant’s account as credible, but not have been satisfied beyond reasonable doubt that the Crown could exclude that the appellant had a mistaken belief that the complainant was consenting to that act – whether a consideration of those verdicts supports a conclusion that there was no proper basis in logic or reason to reconcile those different verdicts, such that the inconsistency represents an unacceptable affront to…

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AGLC
R v Lau [2022] QCA 37
Case
[2022] QCA 37
Decision Date

CaseChat Overview and Summary

The appellant was convicted of three counts of rape and a contravention of a domestic violence order. The Court of Appeal heard an appeal against his conviction and sentence, and an application for bail pending that appeal. The primary issues before the court were whether the trial judge erred in allowing certain evidence, whether there was a miscarriage of justice due to the jury's inconsistent verdicts, and whether the sentence was manifestly excessive. The appellant argued that the trial judge's direction regarding the use of domestic violence evidence was erroneous, leading to an unfair trial. He further contended that the jury's verdicts were inconsistent and did not logically align, which he claimed amounted to a miscarriage of justice. Additionally, the appellant sought to introduce fresh evidence, including CCTV footage and text messages, to support his case that the complainant's account was unreliable. The court assessed the arguments and evidence presented, concluding that the trial judge did not err in his direction regarding the domestic violence evidence. The court found no miscarriage of justice in the inconsistent verdicts, as a jury could reasonably have accepted the complainant's account as credible for some counts but not others. Regarding the fresh evidence, the court held that it did not materially affect the outcome of the trial. Finally, the court rejected the argument that the sentence was manifestly excessive, affirming the original sentence. The application for bail pending appeal was also dismissed.

Orders

Orders of the court

1. Leave to adduce further evidence be refused.

2. The appeal against conviction be dismissed.

3. Leave to appeal against sentence be refused.

4. The application for bail be dismissed.

Background

Background to the litigation

Finally, the appellant makes application for bail, pending his appeal. That application was adjourned at the conclusion of the hearing of the appeals.Background The appellant was born on 21 December 1987. He was aged 31 at the time of the offences and 32 at sentence. The complainant in each of the counts was married to the appellant but they were separated at the time of the offences. They had been in a relationship for approximately eight years. There was one child from that relationship. The complainant had a child from an earlier relationship. The appellant had two children from an earlier relationship. At trial, formal admissions were made as to the making of a temporary protection order on 17 August 2018 and of a protection order on 1 May 2019, naming the appellant as respondent and the complainant as the aggrieved.Counts Count 1 was particularised as penetration of the complainant’s vagina, by the appellant’s penis, without consent. Count 2 alleged contravention of a domestic violence order, being the commission of the rape in contravention of that protection order. Both alleged offences were said to have been committed at a motel in Cairns. Counts 3 to 7 were all alleged to have been committed on 2 May 2019, at the complainant’s residence. Count 3 was particularised as penetration of the complainant’s mouth, by the appellant’s penis, in the shower, without consent. Count 4 was particularised as penetration of the complainant’s vagina, by the appellant’s penis, in the shower, without consent. Count 5 was particularised as penetration of the complainant’s vagina, by the appellant’s penis, in the shower, without consent. Count 6 was particularised as penetration of the complainant’s vagina, by the appellant’s penis, in the bedroom, without consent. Count 7 alleged contravention of a domestic violence order by each offence of rape, in contravention of that order. The appellant did not dispute the acts of penetration alleged in Counts 1, 3, 4 and 5 occurred but contended each act was consensual, or he believed was with the complainant’s consent. The act of penetration alleged in Count 6 was said not to have occurred, although mistake as to consent was also left in relation to this count.Evidence The complainant commenced a relationship with the appellant at the end of 2012. She was aged 17, whilst the appellant was 25 years of age. They married approximately three years later. The complainant said they had arguments in relation to the appellant’s children. In early 2013, there was an incident when the complainant hid in the garage. The appellant grabbed her by the throat, choked her and “smacked” the back of her head against the garage wall, whilst yelling at the complainant.[1] The complainant suffered bruising to her face and lumps to her head.[1]AB125/40-45. On another occasion in 2013, when the appellant had his arm in a sling from shoulder surgery, the complainant said the appellant kicked her in the head during an argument. On a further occasion, when the appellant was tickling her on the bed and she pushed him away, the appellant put her in a choke hold saying he was not going to let go until she calmed down. The complainant said there were other general incidents following arguments. The appellant would get angry over the complainant giving him attitude. On her evidence, he was quick to throw things or to push the complainant.

Evidence

Evidence Before The Court

The appellant did not dispute the acts of penetration alleged in Counts 1, 3, 4 and 5 occurred but contended each act was consensual, or he believed was with the complainant’s consent. The act of penetration alleged in Count 6 was said not to have occurred, although mistake as to consent was also left in relation to this count.Evidence The complainant commenced a relationship with the appellant at the end of 2012. She was aged 17, whilst the appellant was 25 years of age. They married approximately three years later. The complainant said they had arguments in relation to the appellant’s children. In early 2013, there was an incident when the complainant hid in the garage. The appellant grabbed her by the throat, choked her and “smacked” the back of her head against the garage wall, whilst yelling at the complainant.[1] The complainant suffered bruising to her face and lumps to her head.[1]AB125/40-45. On another occasion in 2013, when the appellant had his arm in a sling from shoulder surgery, the complainant said the appellant kicked her in the head during an argument. On a further occasion, when the appellant was tickling her on the bed and she pushed him away, the appellant put her in a choke hold saying he was not going to let go until she calmed down. The complainant said there were other general incidents following arguments. The appellant would get angry over the complainant giving him attitude. On her evidence, he was quick to throw things or to push the complainant. In 2014, the appellant and the complainant moved from their army house as the appellant was leaving the army. They had a child together not long after that move. The complainant said the relationship went back to the same dynamic of arguments, where the appellant would get violent. In June or July 2016, after they argued over the telephone, the appellant returned home, obtained a knife from the kitchen, and cornered the complainant in the laundry. He pointed the knife towards her, saying repeatedly “Don’t you understand this is what it makes me do when you give me attitude? It makes me want to kill you”.[2] Once the complainant told the appellant she understood what she had done, the appellant walked away with the knife.[2]AB131/11-12. The complainant said as the children were getting older, the appellant started to tell her to talk to him in the bedroom rather than have an argument in front of the children. The appellant would lock the bedroom door. He would tell the complainant what she had done wrong. If she did not agree, he would break things. On one occasion he picked up and dropped the bedframe, snapping its end. The complainant said the appellant would say the only way their relationship was going to end was if the complainant was dead or he was in jail, or both. The appellant would also say he was going to kill himself. On one occasion, the appellant took the car keys and said he was going to drive the car into a pole. The complainant tried to take the keys from the appellant. The appellant ended up punching the complainant repeatedly in the back of the head. The complainant recalled feeling dizzy. The appellant started crying, saying he was angry and upset because “You have to go to the hospital, and it’s going to be all my fault because they’re going to blame me, and the system is biased against men and it’s going to – you know, it’s going to [be] my fault and you have to go to hospital”.[3] The complainant said she did not go to hospital on that occasion.[3]AB132/12-13.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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