R v Ou - [2017] QCA 266

SUPREME COURT OF QUEENSLAND

CITATION:

R v OU [2017] QCA 266

PARTIES:

R
v
OU
(applicant)

FILE NO/S:

CA No 87 of 2017
DC No 80 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction & Sentence)

ORIGINATING COURT:

District Court at Gladstone – Date of Conviction & Sentence: 17 November 2016 (McGill SC DCJ)

DELIVERED ON:

7 November 2017

DELIVERED AT:

Brisbane

HEARING DATE:

2 August 2017

JUDGES:

Sofronoff P and McMurdo JA and Bowskill J

ORDERS:

1. Refuse the application to extend time in which to appeal against the applicant’s convictions.

2. Refuse the application to extend time in which to seek leave to appeal against the sentences imposed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant was convicted of three counts of rape of his de facto partner and sentenced to concurrent terms of four, five and seven years’ imprisonment – where there was a delay of five months between the convictions and the filing of the notice of appeal – where the applicant explained the delay by reference to limited access to telephones in prison, illness, a condition affecting his eyesight, and limited education and literacy skills – where the complaint alleged that the offending took place between episodes of consensual sex, including anal sex – where the applicant was said to have confiscated the complainant’s phone and raped her anally and vaginally – where the offending was particularly severe, including simultaneous penetration of the complainant’s anus with the applicant’s penis and a dildo, and where the applicant handcuffed the complainant to a bed, despite her protestations that she would lose control of her bowels – where the complaint gave evidence that the applicant left the complainant handcuffed in a bed lying in her own excrement – where the medical evidence was largely equivocal – where the complainant made preliminary complaints but only in relation to one of the counts – where there were discrepancies in the complainant’s police interview and her evidence given at trial – where the applicant contended that the verdict was unreasonable because the complainant continued to live with him and did not seek medical attention or go to the police, and on the basis that the medical evidence was equivocal – whether it was open to the jury to conclude, beyond reasonable doubt, that the applicant was guilty – whether defence counsel’s decision not to lead character evidence or have the applicant give evidence was so obviously wrong that there was a miscarriage of justice – where the applicant contended that the case against him was so weak that he should have received a non-custodial sentence – where the complainant was left with some difficulty of incontinence and suffered a minor lesion in the rectum in consequence of the offending – where the complainant had suffered a quite severe psychological injury as a result of the offending – where the applicant demonstrated…

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 Ou

Details

AGLC: R v Ou [2017] QCA 266
Case: [2017] QCA 266
Decision Date: 7 November 2017

CaseChat Overview and Summary

The case of R v Ou involved an appeal against the applicant's convictions and sentences for three counts of rape against his de facto partner. The applicant was convicted and sentenced to concurrent terms of four, five, and seven years' imprisonment. The appeal related to the delay in filing the notices of appeal and the application to extend the time for appeal against both the convictions and sentences. The applicant's reasons for the delay included limited access to telephones in prison, illness, a condition affecting his eyesight, and limited education and literacy skills.

The court considered the severity of the alleged offences, which included simultaneous penetration of the complainant's anus with the applicant's penis and a dildo, and the applicant handcuffing the complainant to a bed, despite her protestations. The court also noted the discrepancies in the complainant's police interview and her evidence at trial, and the largely equivocal medical evidence. The applicant argued that the verdict was unreasonable and that the case against him was so weak that he should have received a non-custodial sentence. However, the court found that the evidence was sufficient to support the jury's conclusion that the applicant was guilty beyond reasonable doubt.

The court rejected the applicant's argument that defence counsel's decision not to lead character evidence or have the applicant give evidence was so obviously wrong that there was a miscarriage of justice. The court also found that there was no error in the judge's reasoning or error indicated by the magnitude of the sentences. The court concluded that the applicant's application to extend the time in which to appeal against his convictions and sentences should be refused.

The court's orders were to refuse the application to extend time in which to appeal against the applicant's convictions and to refuse the application to extend time in which to seek leave to appeal against the sentences imposed. The court found that the applicant's explanations for the delay in filing the notices of appeal were not satisfactory, and that the application to extend time was not made within a reasonable time. The court also found that the applicant had not demonstrated any special circumstances that warranted an extension of time.

Orders

Orders of the court

1. Refuse the application to extend time in which to appeal against the applicant’s convictions.

2. Refuse the application to extend time in which to seek leave to appeal against the sentences imposed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

From those matters, there is a credible explanation for not challenging his convictions or sentences within the permitted time. On the other hand, there is not a satisfactory explanation for taking as long as five months to do so.The evidence at the trial The complainant, who was aged in her early forties at the time of the trial, gave the following evidence. She and the applicant met in early 2014. A sexual relationship between them soon developed. The relationship continued for about five months before they began to live together. There was no alleged offending during that period, during which the complainant was living with her teenage children. The applicant persuaded her to leave her employment and live with him, where she could receive an income from public funding as his carer. His need for care came from the visual impairment to which I have referred. In August 2014, the couple moved to a town in Central Queensland and commenced to live together. To that point there had been no discord in their relationship. She said that they were having sex “probably every day”. Two of the three counts were alleged to have occurred in the house in which they first lived. The complainant said that as soon as they began to live together, their relationship deteriorated: the applicant’s behaviour towards her became aggressive and abusive. He confiscated her phone and her SIM card so that, she said, she was unable to talk to her children, her mother or her friends. And he began to sexually abuse her. She described the first count as having occurred in this way. In their house, he pushed her down and held her down whilst he had anal sex. He also penetrated her anus with a dildo (which the couple had purchased). On her evidence, he simultaneously penetrated her with his penis and the dildo. She said that this was very distressing and painful and, as it was occurring, she was crying and pleading with him to stop. She said that this went on for about half an hour, leaving her with consequential bleeding in the anus. After then, there were episodes of consensual sex, including anal sex. She said that the consensual sex was occurring “a few times a week” but the non-consensual sex was happening “more regularly”. Most of the non-consensual sex, she said, was anal sex. But she agreed that prior to this count, there had been occasions of consensual anal sex between them. The second count was said to have occurred in this way. The complainant was in the kitchen cooking dinner, when the applicant pulled down her underwear, bent her over and penetrated her anally with his penis, despite her saying that he should stop. When she tried to stand up, he forced her down and anal intercourse continued for about half an hour. Again, she said, she was left with consequential bleeding. Subsequently, the couple moved to another town. The complainant knew no one in the area. The applicant still had her telephone. She had had no contact with her children, mother or friends for about six weeks. The couple continued to have consensual sex, but the applicant’s behaviour was becoming more aggressive. She said that by this stage the sex was more often than not non-consensual. The third count then occurred. The complainant described an incident when the applicant hand-cuffed her to a bed and had anal intercourse with her, without her consent. She said that this episode had begun with consent, including her consent to being hand-cuffed to the bed. But she consequently withdrew her consent, telling him to stop because it was hurting and she feared that she was about to lose control of her bowels. She said that he persisted for some time after that and, indeed, after she did lose control of her bowels. He stopped only after he had ejaculated and left her hand-cuffed to the bed for a period of time before releasing her. During that time, she said that her own excrement was “all up my arm and leg [and] all over the bed”. And as he was leaving the bed and the complainant in this position, he said to her that “you are not doing it properly – anal sex, that is, unless you’ve struck oil.”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v OU [2017] QCA 266
PARTIES:	R v OU (applicant)
FILE NO/S:	CA No 87 of 2017 DC No 80 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Conviction & Sentence)
ORIGINATING COURT:	District Court at Gladstone – Date of Conviction & Sentence: 17 November 2016 (McGill SC DCJ)
DELIVERED ON:	7 November 2017
DELIVERED AT:	Brisbane
HEARING DATE:	2 August 2017
JUDGES:	Sofronoff P and McMurdo JA and Bowskill J
ORDERS:	1. Refuse the application to extend time in which to appeal against the applicant’s convictions. 2. Refuse the application to extend time in which to seek leave to appeal against the sentences imposed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant was convicted of three counts of rape of his de facto partner and sentenced to concurrent terms of four, five and seven years’ imprisonment – where there was a delay of five months between the convictions and the filing of the notice of appeal – where the applicant explained the delay by reference to limited access to telephones in prison, illness, a condition affecting his eyesight, and limited education and literacy skills – where the complaint alleged that the offending took place between episodes of consensual sex, including anal sex – where the applicant was said to have confiscated the complainant’s phone and raped her anally and vaginally – where the offending was particularly severe, including simultaneous penetration of the complainant’s anus with the applicant’s penis and a dildo, and where the applicant handcuffed the complainant to a bed, despite her protestations that she would lose control of her bowels – where the complaint gave evidence that the applicant left the complainant handcuffed in a bed lying in her own excrement – where the medical evidence was largely equivocal – where the complainant made preliminary complaints but only in relation to one of the counts – where there were discrepancies in the complainant’s police interview and her evidence given at trial – where the applicant contended that the verdict was unreasonable because the complainant continued to live with him and did not seek medical attention or go to the police, and on the basis that the medical evidence was equivocal – whether it was open to the jury to conclude, beyond reasonable doubt, that the applicant was guilty – whether defence counsel’s decision not to lead character evidence or have the applicant give evidence was so obviously wrong that there was a miscarriage of justice – where the applicant contended that the case against him was so weak that he should have received a non-custodial sentence – where the complainant was left with some difficulty of incontinence and suffered a minor lesion in the rectum in consequence of the offending – where the complainant had suffered a quite severe psychological injury as a result of the offending – where the applicant demonstrated…