R v Oth

Case [2022] QCA 53

SUPREME COURT OF QUEENSLAND

CITATION:

R v Oth [2022] QCA 53

PARTIES:

R
v
OTH, George Mteusela
(appellant)

FILE NO/S:

CA No 139 of 2021
DC No 189 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Townsville – Date of Conviction: 3 June 2021 (Richards DCJ)

DELIVERED ON:

Date of Orders: 15 February 2022
Date of Publication of Reasons: 14 April 2022

DELIVERED AT:

Brisbane

HEARING DATE:

15 February 2022

JUDGES:

Sofronoff P and McMurdo JA and Kelly J

ORDERS:

Orders delivered: 15 February 2022

1.   Appeal allowed.

2.   Convictions set aside.

3.   Retrial ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the appellant was convicted of one count of rape and two counts of indecent treatment of a child – where the appellant left the house where the alleged offending took place shortly after the alleged offending – where the prosecutor put it to the accused in cross-examination that “the real reason that [the accused] left the house… is because [of the alleged offending” – where the prosecutor in closing referred to the accused leaving the house as “convenient timing” and suggested that “it was because during [the previous] moments is when [the accused] took that opportunity to abuse the trust placed him by this family, went up behind the complainant and touched her” – where the trial judge did not direct the jury about the post-offence conduct – whether the trial judge ought to have directed the jury about the post-offence conduct – whether the failure to direct the jury about the post-offence conduct constituted a miscarriage of justice in the circumstances

Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, considered
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63, considered
R v Chang (2003) 7 VR 236; [2003] VSCA 149, cited
R v Melrose [1989] 1 Qd R 572, applied
R v Peavoy (1997) 117 CCC (3d) 226, cited
R v SBB (2007) 175 A Crim R 449; [2007] QCA 173, cited
R v White [1998] 2 SCR 72, cited
Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28, applied

COUNSEL:

J Robson for the appellant
C N Marco for the respondent

SOLICITORS:

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

  1. SOFRONOFF P:  I agree with the reasons of Kelly J.

  2. McMURDO JA:  For the reasons given by Kelly J, I joined in the orders made on 15 February 2022.

  3. KELLY J:  On 3 June 2021, the appellant was convicted on three counts, two involving the indecent treatment of a child and one of rape.  At the time of the alleged offending, the appellant was 69 years old and the complainant was 10 years old.  The appellant had been in a relationship with the complainant’s mother and…

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AGLC
R v Oth [2022] QCA 53
Case
[2022] QCA 53
Decision Date

CaseChat Overview and Summary

The case of R v Oth involved the appellant, who was convicted of one count of rape and two counts of indecent treatment of a child. The complainant alleged that the offending occurred between 22 November 2019 and 11 December 2019. The prosecution's case relied heavily on the complainant's evidence, including police interview recordings and pre-recordings of her testimony. The trial judge did not direct the jury about the appellant's post-offence conduct, specifically his departure from the scene shortly after the alleged incidents, which became a significant point of contention during the trial.

The legal issues that the court needed to decide were whether the trial judge should have directed the jury regarding the appellant's post-offence conduct and if the failure to do so constituted a miscarriage of justice. The prosecution argued that the appellant's departure was conveniently timed and suggested that it was due to the alleged offending. However, the trial judge did not address this aspect in the jury's directions, leaving it to the jury to infer its significance. The court had to determine if this omission was a material error that affected the fairness of the trial.

In its reasoning, the court concluded that the trial judge's failure to direct the jury about the appellant's post-offence conduct was a significant error. The omission of this point in the jury's directions meant that the jury might have misunderstood the relevance and weight of this evidence. The court found that this constituted a miscarriage of justice, as it potentially influenced the jury's decision without proper legal guidance. Consequently, the convictions were set aside, and a retrial was ordered.

The final orders were that the appeal was allowed, the convictions were set aside, and a retrial was ordered. The court emphasised the importance of proper jury directions to ensure that all relevant evidence is considered fairly and legally. This decision highlighted the necessity for trial judges to address all material aspects of the case in their instructions to the jury to maintain the integrity of the judicial process.

Orders

Orders of the court

Orders delivered: 15 February 2022

1. Appeal allowed.

2. Convictions set aside.

3. Retrial ordered.

Background

Background to the litigation

These are my reasons for joining in the making of those orders.Factual Background The offending was alleged to have occurred during the period between 22 November 2019 and 11 December 2019. On 11 December 2019, the complainant’s mother had picked the complainant up from school and returned to the home. Later that afternoon, the complainant had come to her mother’s room, wrote two notes which made a complaint about the appellant, and gave those notes to her mother. The mother had then called the police. The police interviewed the complainant. The complainant described being at the home, after having returned from school, during the afternoon of 11 December 2019. She recalled standing in front of the fridge and the appellant coming up behind her and touching her. She said he whispered into her ear and said that she was his wife. She recalled that the touching had involved rubbing her vagina on the outside of her shorts for a couple of seconds. The complainant said that after this episode she got a drink and went to her mother’s room where she wrote the notes and gave them to her mother. The complainant described to the police two earlier occasions where the appellant had been in the pool with her. On the first occasion, the appellant was described as having touched and rubbed her vagina. On the second occasion, he was described as having rubbed her vagina. The rubbing on this occasion was described by the complainant as having been “Inside. And sometimes outside”. She recalled that when this offending occurred, her mother had been in the bedroom and her brother had been in the lounge room. After interviewing the complainant, the police interviewed one of the complainant’s brothers, who was then 15 years old. The brother described being present when the complainant wrote the notes and spoke with her mother. He also described having earlier that day been in the pool with his two siblings and the appellant. He described the appellant’s behaviour towards the complainant in these terms “ … he keeps starin’ at her. Um, every time we go to the pool, he’s always lookin’ out the window, when me, [my brother] and [the complainant] are in the pool” (sic).Overview of the trial The trial occurred over two days. The trial was a retrial, the jury in the earlier trial having been unable to reach a unanimous verdict. The Crown case was opened on the basis that “it really rises and falls on the evidence that comes from [the complainant]”. That evidence comprised recordings of the police interview and two pre-recordings of evidence. The complainant had been cross examined about her behaviour in the home. She agreed that she would at times get angry with her mother but denied ever shouting at her mother. She admitted shouting at the appellant. She was insistent that the appellant had been in the pool with her alone. She gave evidence which confirmed that the offending the subject of the counts had occurred. The brother also gave evidence which comprised a recording of his police interview and a pre-recording of his evidence. He had been briefly cross examined and confirmed that he had never seen the appellant touching or rubbing the complainant’s vagina.

Evidence

Evidence Before The Court

Around 3 pm on day two, a note was received from the jury which stated that the jury wanted to see the complainant’s police interview again. The recording was replayed to the jury along with the substantive part of the cross examination of the complainant. The jury then returned to their deliberations and the verdict was returned at 5.29 pm.The post-offence conduct and how that evidence was left to the jury The appellant’s arguments on this appeal concerned the admission and treatment of evidence that, on 11 December 2019, the appellant had left the scene of the alleged offending after the complainant went into her mother’s room and after the mother’s friend had arrived at the home and ignored the appellant. This conduct of the appellant in leaving the scene was described in the submissions as “the post-offence conduct”. The post-offence conduct was not opened by the prosecution. In the course of the mother’s evidence in chief, the following exchange occurred about the events on 11 December 2019:“Before police arrived or after they arrived, did you see [the appellant]? …Yes.…Where did you see him? …At his niece’s place.Okay. Was that before or after police came to your house? …He was at his niece’s before he got arrested.Okay but just before that did you see him leave your house? …Yes. And that was before the police turned up.Okay. Was it before or after [the complainant] wrote the note? …After.” During the evidence in chief of the investigating police officer, the following exchange occurred about the events on 11 December 2019:“That day, did you speak to [the appellant]? …I did, yes.Where did you speak to him? … Several houses down the road. I don’t recall the exact address.What time was that? Do you recall the time? … Some time after 5.30…When you spoke to [the appellant] down the road… you informed him of the allegation against him generally, being the indecent treatment of a child. Is that right? Yes, from memory.” The appellant gave evidence in chief that at about 5 pm on the afternoon of 11 December 2019 he had left the home and walked to his niece’s house which was close by. That evidence was adduced by a leading question which contained the comment that the subject matter of the question was “uncontroversial”. In cross examination, the prosecutor referred the appellant to the following parts of the appellant’s evidence from the first trial:“Now, moving onto seeing [the complainant] go into her mother’s room.Question: Do you agree that in terms of all the events on the 11th of December two-thousand – December, you understand that [the complainant’s] allegation is that you touched her in the kitchen. And the only time that could have occurred was when she was getting watermelon in the kitchen; is that right?Answer: I never touched her.Question: I accept that’s what you say.Answer: Yeah.Question: But the only time that could’ve occurred was when she was in the kitchen getting watermelon; is that right on that day?Answer: Yeah.Question: That’s the only time it could’ve occurred because after she left the kitchen, she went into her mother’s room; is that right?Answer: Yeah.Question: And a short time later, you had a cigarette?Answer: Yeah.Question: You were watching the boys play Fortnite for a short time?Answer: Yeah.”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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