R v Lu - [2018] QCA 193

SUPREME COURT OF QUEENSLAND

CITATION:

R v Lu [2018] QCA 193

PARTIES:

R
v
LU, Jiun Jie
(appellant)

FILE NO/S:

CA No 307 of 2017
DC No 1945 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 7 December 2017 (Farr SC DCJ)

DELIVERED ON:

21 August 2018

DELIVERED AT:

Brisbane

HEARING DATE:

30 July 2018

JUDGES:

Fraser and Philippides JJA and Henry J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where the appellant was convicted of two counts of rape – where the trial judge gave a jury direction as to the defence of mistake under s 24 of the Criminal Code (Qld) – whether the trial judge erred in directing the jury regarding s 24 of the Criminal Code (Qld) – where the appellant relies on his belief being an evolving belief progressing based on an absence of resistance to sexual acts – where the trial judge did not refer to the evolving belief in the summing up – where no redirection was sought on the issue – whether a new trial ought be ordered

Criminal Code (Qld), s 24

Alford v Magee (1952) 85 CLR 437; [1952] HCA 3, cited
Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, cited
Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13, cited
Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34, cited
R v Davidson: Ex parte Attorney-General (Qld)[2009] QCA 283, cited
R v Maniadis [1997] 1 Qd R 593; [1996] QCA 242, cited
R v Mogg (2000) 112 A Crim R 417; [2000] QCA 244, cited
R v Roberts[2009] QCA 22, cited
R v Theohares [2017] 1 Qd R 211; [2016] QCA 51, cited

COUNSEL:

M J Copley QC for the appellant
C W Heaton QC for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

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

PHILIPPIDES JA: I agree that the appeal should be dismissed for the reasons given by Henry J.

HENRY J: The appellant, a masseuse, appeals his conviction by a jury of the digital rape and penile rape of a client committed in the course of massaging her.

The acts of penetration were admitted. The appellant defended the charges on the basis that the complainant consented, or that the appellant honestly and reasonably but mistakenly believed she was consenting, to the acts of penetration.

The sole ground of appeal relates to an alleged inadequacy in the learned trial judge’s directions on the defence of mistake of fact. No complaint of such inadequacy was made at trial.

Facts

The appellant was employed to provide remedial massages at a salon occasionally patronised by…

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 Lu

Details

AGLC: R v Lu [2018] QCA 193
Case: [2018] QCA 193
Decision Date: 21 August 2018

CaseChat Overview and Summary

The appellant in this case, who was convicted of two counts of rape, challenged the verdict on appeal to the court. The central issue was whether the trial judge's direction to the jury regarding the defence of mistake under section 24 of the Criminal Code (Qld) was erroneous. The appellant argued that the trial judge did not adequately address his evolving belief that the complainant was not resisting the sexual acts, which should have been considered as part of the defence. This omission, it was claimed, warranted a new trial. The appeal raised critical questions about the adequacy of jury instructions concerning evolving beliefs in the context of sexual offence trials.

The court examined whether the trial judge's direction was sufficient to allow the jury to properly consider the defence of mistake as it pertains to evolving beliefs. The court considered the legal principles surrounding the defence of mistake and the necessity for clear and comprehensive jury directions. It was noted that the trial judge did not explicitly refer to the evolving nature of the appellant's belief in the summing up, and no redirection was sought on this issue. The court assessed the impact of this omission on the fairness of the trial and the reliability of the verdict.

After thorough consideration, the court found that the trial judge's direction, while not perfect, did not constitute a misdirection that would necessitate a new trial. The court held that the jury had sufficient information to consider the defence of mistake, despite the omission regarding the evolving belief. The court concluded that the error, if any, was not so significant as to undermine confidence in the verdict. Consequently, the appeal was dismissed, and the convictions were upheld.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Lu [2018] QCA 193
PARTIES:	R v LU, Jiun Jie (appellant)
FILE NO/S:	CA No 307 of 2017 DC No 1945 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 7 December 2017 (Farr SC DCJ)
DELIVERED ON:	21 August 2018
DELIVERED AT:	Brisbane
HEARING DATE:	30 July 2018
JUDGES:	Fraser and Philippides JJA and Henry J
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where the appellant was convicted of two counts of rape – where the trial judge gave a jury direction as to the defence of mistake under s 24 of the Criminal Code (Qld) – whether the trial judge erred in directing the jury regarding s 24 of the Criminal Code (Qld) – where the appellant relies on his belief being an evolving belief progressing based on an absence of resistance to sexual acts – where the trial judge did not refer to the evolving belief in the summing up – where no redirection was sought on the issue – whether a new trial ought be ordered Criminal Code (Qld), s 24 Alford v Magee (1952) 85 CLR 437; [1952] HCA 3, cited Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, cited Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13, cited Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34, cited R v Davidson: Ex parte Attorney-General (Qld)[2009] QCA 283, cited R v Maniadis [1997] 1 Qd R 593; [1996] QCA 242, cited R v Mogg (2000) 112 A Crim R 417; [2000] QCA 244, cited R v Roberts[2009] QCA 22, cited R v Theohares [2017] 1 Qd R 211; [2016] QCA 51, cited
COUNSEL:	M J Copley QC for the appellant C W Heaton QC for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent