R v Nah

Case [2024] QCA 170

SUPREME COURT OF QUEENSLAND

CITATION:

R v NAH [2024] QCA 170

PARTIES:

R
v
NAH
(appellant/applicant)

FILE NO/S:

CA No 264 of 2022
CA No 2 of 2023
DC No 28 of 2022
DC No 399 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Townsville – Date of Conviction: 28 October 2022; Date of Sentence: 13 December 2022 (Lynham DCJ)

DELIVERED ON:

13 September 2024

DELIVERED AT:

Brisbane

HEARING DATE:

7 November 2023; further submissions received 21 November 2023 (respondent) and 22 November 2023 (appellant); further submissions received 12 August 2024 (appellant) and 22 August 2024 (respondent)

JUDGES:

Mullins P and Dalton JA and Burns J

ORDERS:

1.   Appeal against conviction dismissed.

2.   Application for leave to appeal against sentence granted.

3.   Leave to the appellant to withdraw the concession made on his behalf at the hearing of the appeal that the resentencing should proceed on the facts found by the trial judge.

4.   Appeal against sentence dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted of one count of maintaining and one count of common assault by majority verdicts – where contradictions existed between the complainant’s handwritten statement and her preliminary complaints on the one hand and her evidence on the other hand – where the complaint about count 1 was made late – where these matters concerning the complainant’s credit were for the jury – whether the jury must have had a reasonable doubt about the appellant’s guilt such that the verdicts were unreasonable

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IRREGULARITIES IN RELATION TO JURY – where a complaint was received from a juror that other jurors had googled information about a hung jury during deliberations – whether there was a miscarriage of justice because a juror or jurors disobeyed the trial judge’s direction not to have recourse to external sources of information when considering their verdicts

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MIS-DIRECTION OR NON-DIRECTION – where the appellant was found guilty after trial before a jury of maintaining a sexual relationship with a child during the period when the complainant was aged 10 to almost 12 years old (count 2) – where the jury was provided during the prosecutor’s opening address with a particulars document that specified four types of sexual acts alleged to be committed during the period specified in count 2, including that he groped her buttocks – where the particulars for count 2 remained unchanged during the trial – where the complainant’s evidence described the sexual acts performed on her by the appellant and her age when they were committed, including that she was 10 or 11 years when he started touching her bottom and that she would have been 13 years when the appellant started touching her breasts…

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AGLC
R v Nah [2024] QCA 170
Case
[2024] QCA 170
Decision Date

CaseChat Overview and Summary

The appellant, Nah, was convicted by a jury of one count of maintaining a sexual relationship with a child and one count of common assault. The appellant appealed against the conviction and sentence. The court considered whether the jury’s verdicts were unreasonable or insupportable having regard to the evidence, whether there was a miscarriage of justice due to irregularities in relation to the jury, and whether there was a misdirection or non-direction that had the effect of a miscarriage of justice. The court also considered whether the appeal against the sentence should proceed.

The court found that the jury’s verdicts were not unreasonable or insupportable. The court accepted that there were credit points to be made on the complainant’s evidence, but found that the jury could still have been satisfied beyond reasonable doubt of the appellant’s guilt. The court found that the irregularity of the juror researching information about a hung jury did not affect the verdict or the substance of the jury’s deliberations. The court found that the misdirection by the trial judge in relation to the particulars for count 2 did not have the effect of a miscarriage of justice, as the trial judge gave numerous reminders of the correct particulars and the jury was clearly instructed as to the charges.

The court found that the trial judge erred in law in sentencing the appellant on the basis that the maximum penalty for count 2 was life imprisonment. The court found that the appellant was not asked to return a verdict on the circumstance of aggravation that increased the maximum penalty, and that the maximum penalty in the absence of a guilty verdict on the circumstance of aggravation was 14 years’ imprisonment. The court found that the appellant’s counsel was plainly wrong in conceding that the resentencing should proceed on the facts found by the trial judge, and granted leave to withdraw the concession.

The court dismissed the appeal against conviction, granted leave to appeal against sentence, allowed the appellant to withdraw the concession made on his behalf at the hearing of the appeal, and dismissed the appeal against sentence.

Orders

Orders of the court

1. Appeal against conviction dismissed.

2. Application for leave to appeal against sentence granted.

3. Leave to the appellant to withdraw the concession made on his behalf at the hearing of the appeal that the resentencing should proceed on the facts found by the trial judge.

4. Appeal against sentence dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

A third man who dated the complainant briefly in 2019 said that she reported to him that her father was abusive and angry. She told him that her father got their family dog to lick her “down there”. This conversation occurred in 2019.Defence evidence The appellant did not give or call evidence.Argument as to unreasonable verdict The argument made on behalf of the appellant as to unreasonable verdict was that it was not open to the jury to be satisfied of the appellant’s guilt beyond reasonable doubt in relation to counts 2 and 10. Reliance was placed on the fact that the Crown case depended almost entirely upon the complainant’s evidence and that significant contradictions existed between what the complainant had asserted in her handwritten statement and her preliminary complaint to her aunt on the one hand, and her evidence on the other hand. The fact that no complaint was made of anal rape to any of the people to whom fresh complaint was made, or in the domestic violence application was relied upon. The very late complaint about count 1 was relied upon. The complainant did not make an allegation in this regard until April 2019. Before that she had participated in three video recorded interviews with police and not said anything about it. Reliance was placed on the complainant’s mother’s observations of a mark around her windpipe from age 15, although the complainant asserted the mark was made when she was 17. There were certainly credit points to be made for the defence on the complainant’s evidence, and they were made before the jury. Not only that, having regard to the verdicts which were delivered by the jury, and the fact that on six counts the jury could not reach even a majority verdict, the jury must have had at least a reasonable doubt as to much of the complainant’s testimony. In my view that does not mean that the jury must have had a reasonable doubt in relation to count 2 or count 10 within the meaning of the test established by Pell v The Queen.[4] I cannot see that the jury’s verdict was unreasonable in this sense, so that this Court could enter verdicts of acquittal on counts 2 and 10.[4](2020) 268 CLR 123, 147, [44]. I will note for completeness that there was expressly no argument of inconsistent verdicts made by the appellant. This was notwithstanding that no verdict was returned on counts 3 and 4 (associated with, but separate from, count 2) and count 11 (associated with, but separate from, count 10). I note this, not by way of criticism, but because of the unusual pattern of verdicts, and failure to reach verdicts in this case.Factual misdirection as to count 2 As noted above, the Crown case on count 2, maintaining, was run in reliance on the complainant’s evidence of uncharged sexual acts between 22 May 2001 and 1 May 2003. Such a course is open to the Crown – R v WAB.[5] The Crown expressly disclaimed reliance upon the specified offending charged at counts 3, 4, 6 and 7 in pressing count 2, and the jury was very clearly instructed as to this. In the Crown’s opening, the prosecutor gave the jury a document which particularised each of the counts they were to consider. As to count 2 that document recorded:“Count 2: Maintaining a sexual relationship with a child under 16That between 22 May 2001 and 1 May 2003 at [name of town], the defendant, being an adult, maintained an unlawful sexual relationship with [the complainant], a child under 16 years.And in the course of the relationship the defendant engaged in the following conduct with [the complainant]:·He groped her buttocks (Indecent treatment of a child under 16, under 12)·He touched/rubbed her on her vagina (Indecent treatment of a child under 16, under 12)·He inserted his finger/s into her vagina, without her consent (Rape)·He inserted his penis into her vagina, without her consent (Rape)”[5][2008] QCA 107, [27].

Decision

Reasons for decision

Even if the evidence were stronger, I cannot see that the irregularity affected the juror’s or jury’s discharge of the function of deciding about the appellant’s guilt according to law, on the evidence, and in accordance with the directions of the trial judge. The irregularity was to disobey a direction and research a matter which was purely a matter of process. The stated effect of the research was to bring the inability of the jury to reach a unanimous verdict to the attention of the judge earlier than otherwise would have been the case. Nothing about the irregularity bore on the question of the appellant’s guilt. It did not bear upon the evidence which the jury considered in coming to its conclusion about the question of guilt, or upon the law it applied in making those determinations. To use the words from Smith, and adopted in HCF at [11], the irregularity did not cast any “shadow of injustice over the verdict”. The irregularity is not one which affected the verdict or the substance of the jury’s deliberations about the verdict.Conclusions in relation to conviction In relation to the appeal against conviction I would: (1) Set aside the verdict on count 2 and order a re-trial on that count; (2) otherwise dismiss the appeal. Because I have come to these conclusions, I need not consider the application for leave to appeal against sentence. However, I will express my views on the application. It was fully argued before us. It concerned ss 747 and 748 of the Criminal Code which are transitional provisions relating to changes to the elements of, and maximum sentence for, the offence of maintaining a sexual relationship with a child. We were told that the points raised arise frequently enough in practice, and that there is no appellate authority on ss 747 and 748 of the Criminal Code. Although the matters relating to sentence fall to be determined on an application, for consistency, I will continue to refer to the applicant on the leave application as the appellant.Appeal against sentence The trial judge imposed a sentence of 11 years for the maintaining which was the subject of count 2 on the indictment. To do so he made a finding of law that the maximum penalty for that offence was life imprisonment, and a finding of fact that the appellant regularly touched the complainant’s buttocks and vagina (by which he probably meant vulva); digitally raped her more than once a week and raped her by inserting his penis into her vagina more than once a week over a period of two years from the age of 10 years old. In written submissions, and on the oral hearing of the appeal, counsel for the appellant accepted that the sentence was within range. However, he said that the primary judge had made an error of law so that this Court was obliged to set the sentence aside in accordance with Kentwell v The Queen.[10] The appellant’s counsel asked for a sentence of 10 years on the basis that he accepted the factual basis upon which the appellant was sentenced. In the course of preparing these reasons I formed the view that the factual basis for sentencing adopted by the primary judge was perhaps not open to him. Accordingly, supplementary written submissions were sought from the parties and counsel for the appellant asked for leave to withdraw the concession that the appellant was sentenced on a correct factual basis below. The Crown did not actively oppose that leave per se, but advanced arguments of law as to why this Court should not find that there was a basis to interfere with the factual basis adopted by the primary judge. I would give leave to withdraw the concession; it was plainly wrong and it matters, not just to the factual outcome in this case, but raises important questions of law.[10](2014) 252 CLR 601, [42].Relevant Statutory Provisions

Ratio Decidendi

Legal Principle Established

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