R v Orreal

Case [2020] QCA 95

SUPREME COURT OF QUEENSLAND

CITATION:

R v Orreal [2020] QCA 95

PARTIES:

R
v
ORREAL, Malcolm Laurence
(appellant/applicant)

FILE NO/S:

CA No 80 of 2019
DC No 1809 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 8 March 2019; Date of Sentence: 11 March 2019 (Fantin DCJ)

DELIVERED ON:

8 May 2020

DELIVERED AT:

Brisbane

HEARING DATE:

6 March 2020

JUDGES:

McMurdo and Mullins JJA and Bond J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF DEFENCE COUNSEL – where appellant was convicted of rape – where appellant’s trial counsel did not call evidence of complainant’s previous sexual partners – where appellant’s trial counsel did not call evidence of eyewitness regarding timeline of incident – where appellant’s trial counsel did not object to admissibility of evidence that the appellant and complainant both tested positive for HSV-1 – whether no rational forensic justification can be discerned for these choices – whether choices constituted a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE – APPLICATION OF PROVISO TO PARTICULAR CASES – where evidence that the appellant and complainant both tested positive for HSV-1 was irrelevant – whether, notwithstanding admission of this evidence, there was no substantial miscarriage of justice

Criminal Code (Qld), s 668E

Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7, applied
OKS v Western Australia (2019) 265 CLR 268; [2019] HCA 10, considered
Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12, cited
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, cited

COUNSEL:

A J Kimmins for the appellant/applicant
C W Wallis for the respondent

SOLICITORS:

Owens & Associates for the appellant/applicant
Director of Public Prosecutions (Queensland) for the respondent

  1. McMURDO JA:  The evidence at the trial is set out in the judgment of Bond J and need not be repeated here.  Substantially for the reasons given by Bond J, the appellant’s arguments, apart from those about the wrongful admission and possible misuse of the evidence that the appellant and the complainant had tested positively for the virus HSV-1, should be rejected.  However, in my conclusion, the appellant’s arguments about that evidence should be accepted, and, as I will explain, the proviso cannot be applied in this case which turned on the contested credibility of the complainant.[1]

  2. The evidence that a vaginal swab detected the presence of the virus in the complainant was indicative of some sexual contact with a person who, at some stage, had become infected with the virus, and was, at the time of that contact, shedding the virus.  There was evidence that not long before the alleged offending, the complainant…

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AGLC
R v Orreal [2020] QCA 95
Case
[2020] QCA 95
Decision Date

CaseChat Overview and Summary

The case of R v Orreal involved an appeal against the appellant's conviction of multiple counts of rape and indecent dealing. The appellant argued that the trial counsel's failure to call evidence of the complainant's previous sexual partners, an eyewitness regarding the timeline of the incident, and to object to the admissibility of evidence that both the appellant and complainant tested positive for HSV-1, amounted to a miscarriage of justice. The court was required to determine whether these omissions constituted a miscarriage of justice and, if so, whether the error could be dismissed under the proviso of the common form provision.

The court found that the failure to call the complainant's previous sexual partners and the eyewitness was not a rational forensic choice but concluded that these omissions did not constitute a miscarriage of justice. With respect to the HSV-1 evidence, the court determined that the evidence was not probative of any relevant fact and should have been disregarded by the jury. However, the court held that the admission of this evidence did not result in a substantial miscarriage of justice, particularly given the unanimity of the closing addresses on the insignificance of the evidence and the trial judge's directions to the jury.

Accordingly, the court dismissed the appeal. The reasoning of the court was grounded in the legislative framework, particularly the common form provision and the proviso allowing the dismissal of an appeal if no substantial miscarriage of justice had occurred, despite the error. The court's decision highlighted the importance of the trial counsel's strategic decisions and the limited scope of appellate intervention in such matters.

In summary, the court dismissed the appeal, finding that the appellant was bound by counsel's decisions and that no substantial miscarriage of justice had occurred despite the errors in the trial.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

For reasons which follow, neither ground of appeal should be upheld and the appeal should be dismissed.The relevant evidenceEvidence of the complainant The complainant was MR’s daughter, DR. The jury heard the recording of the complainant’s interview with police on Monday 30 January 2017. She was 12 at the time of the interview. The salient parts of the interview were:(a)She told police that “someone’s just been real sexual to me” and identified the appellant as the person concerned.(b)She described events which happened in the appellant’s bedroom at the appellant’s house on the previous evening, Sunday 29 January 2017.(c)She was in the appellant’s room on his bed watching the movie “American Sniper” on TV. She became tired before the movie finished and he turned off the TV.(d)While she lay on the bed the appellant commenced touching her.(e)The appellant began rubbing and tickling her back and legs before he had her roll on her back. He touched her genitals [count 1 indecent dealing] and had her touch his erect penis after it was pressed against her [count 2 indecent dealing].(f)He then put his finger in her vagina [count 3 rape].(g)The appellant then pulled down her shorts and pushed his penis inside her vagina causing her pain [count 4 rape]. He then stopped. The complainant said whilst this was happening she was crying and upset.(h)He then started rubbing his fingers on the outside of the complainant’s vagina [count 5 indecent dealing], leading the complainant to think “oh no, he’s gonna do it again”.(i)He then stopped and asked her to promise not to tell anyone and then went outside, telling her he was going to have a smoke.(j)After the appellant left, she stood up and went outside the bedroom to see whether her mother was awake but she was not. She heard the appellant coming back and ran back into the bedroom and lay back in the position she had been.(k)When the appellant returned, he lay back down on the bed and, after a short time, the complainant left the bedroom and went outside laying down head to toe with her sister, who was sleeping on a couch in the lounge room.(l)The next morning, when the complainant and her mother were shopping, she told her mother what had happened. Her mother then took her to the police. The jury also heard the complainant’s pre-recorded evidence. She was 14 at the time that her evidence was pre-recorded. In her evidence in chief, she said she told the police the truth during the interview. She was asked whether she had ever had contact with anyone other than the appellant that involved them touching her vagina, and she said she had. As to that contact:(a)She said that the person involved was a 15 year old boy who had been her boyfriend. He had touched her vagina with his tongue.(b)She had not seen him for a while and went to see him for “just that one night”. She was not asked to identify when “that one night” was.(c)She was asked to think of the night when the events concerning the appellant had taken place and whether during the period of 3 or 4 days before that night anything was inserted into her vagina. She answered “no”.

Decision

Reasons for decision

In the circumstances, I conclude that the appellant should be regarded as bound by counsel’s forensic choices in relation to the HSV-1 evidence. No occasion arises for appellate consideration to turn to whether making those choices constituted a miscarriage of justice. I should observe that even if I were wrong in this regard, I would have concluded that in light of:(a)the unanimity in both closing addresses as to the insignificance of the evidence; and(b)the terms of the trial judge’s directions to the jury in relation to this evidence;there was no basis for reaching a conclusion that the failure to object to the evidence deprived the accused of a chance of acquittal that was fairly open.Conclusion on ground 1 I have explained why I have formed the view that, considered separately, none of the impugned aspects of counsel’s conduct justifies appellate intervention. For completeness, I should record there is no reason to reach any different conclusion if one considers them together. Accordingly, ground 1 of the appeal fails.Ground 2: Unfair prejudice and miscarriage of justice because of the admission of the medical evidence concerning the presence of HSV-1 My analysis of ground 1 of the appeal permits me to conclude that the HSV-1 evidence was not admissible at all because it was not probative of any relevant fact. Even though the evidence was adduced by agreement and without objection, the primary judge should have directed the jury that they were obliged to disregard the evidence entirely. The summing up did not go that far. On the basis of the law as explained at [68] above, a miscarriage of justice within the third limb of the common form provision is established. Counsel for the respondent invited this Court to apply the proviso,[20] if we were persuaded that error had occurred in the sense described at [68] above.[20]In Queensland, the proviso is expressed in s 668E(1A) of the Criminal Code “However, the Court may, notwithstanding that it is of the opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.” If a miscarriage of justice within the third limb of the common form provision is established, the appellate court is apparently commanded to allow the appeal.[21] The apparent tension between (a) the command to allow an appeal where the court is of the opinion that there was a miscarriage of justice, and (b) the proviso that it may dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred, is resolved by reference to history and legislative purpose: see Kalbasi v Western Australia at [12]. The determination of whether, notwithstanding the error, there has been no substantial miscarriage of justice is committed to the appellate court: see Kalbasi v Western Australia at [12].[21]Section 668E(1) of the Criminal Code provides “The Court on any such appeal against conviction shall allow the appeal if it is of opinion … that on any ground whatsoever there was a miscarriage of justice …” (emphasis added).

Ratio Decidendi

Legal Principle Established

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