R v Pau - [2016] QCA 197

SUPREME COURT OF QUEENSLAND

CITATION:

R v PAU [2016] QCA 197

PARTIES:

R
v
PAU
(appellant)

FILE NO/S:

CA No 162 of 2015
DC No 1326 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 16 July 2015

DELIVERED ON:

5 August 2016

DELIVERED AT:

Brisbane

HEARING DATE:

23 May 2016

JUDGES:

Margaret McMurdo P and Morrison JA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The appeal against conviction is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the complainant’s evidence was supported by other evidence – where the jury was entitled to reject the appellant’s evidence – where the primary judge gave appropriate judicial directions that the jury must not convict unless satisfied of the complainant’s evidence beyond reasonable doubt

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant alleges inadmissible evidence of past acquittals was improperly before the jury in the complainant’s statement to police – where the appellant alleges the primary judge did not warn the jury as to the use of the inadmissible evidence – where the evidence referred to uncharged acts and was not about the counts on which the appellant had been acquitted at an earlier trial – where the primary judge directed the jury about two other episodes of uncharged acts relied on by the prosecution – where a specific direction about the evidence would have unnecessarily drawn the jury’s attention to imprecise language of a 13 year old – whether there was a miscarriage of justice

MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited
R v GAP [2013] 1 Qd R 427; [2012] QCA 193, cited
R v PAS[2014] QCA 289, related

COUNSEL:

The appellant appeared on his own behalf
S J Farnden for the respondent

SOLICITORS:

The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

MARGARET McMURDO P: The appellant, PAU was convicted after a four day jury trial of deprivation of liberty (count 1); indecent treatment of a child under 12 under care (count 2) and three counts of rape (counts 3, 4 and 5). He has appealed against his convictions on two grounds. The first is that the verdicts were unsafe and unsatisfactory. The second is that justice miscarried due to irregularities and defects, namely admitting inadmissible evidence in respect of which the appellant had already been acquitted, and that the trial judge erred by not directing the jury as to the disclosure of his previous acquittal. A consideration of these grounds of appeal requires this Court to review the evidence at trial and relevant aspects of the judge’s directions.
Background
The case against the…

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 Pau

Details

AGLC: R v Pau [2016] QCA 197
Case: [2016] QCA 197
Decision Date: 5 August 2016

CaseChat Overview and Summary

In the case of R v Pau, the appellant sought to appeal against his convictions for various sexual offences against a young child. The Queensland Court of Appeal was tasked with determining whether the verdict was unreasonable or insupportable having regard to the evidence, and whether there had been a miscarriage of justice due to the improper admission or rejection of evidence. The appellant argued that the trial judge did not adequately warn the jury about the use of inadmissible evidence, specifically past acquittals mentioned in the complainant's statement to police. He also claimed that the evidence of uncharged acts was prejudicial and contributed to a miscarriage of justice.

The court examined whether the jury's verdict was supported by the evidence and whether the trial judge's directions were adequate. The complainant's evidence was corroborated by other evidence, including her detailed statement to police and the appellant's admissions. The jury was properly instructed that they must be satisfied beyond reasonable doubt of the complainant's evidence to convict the appellant. The court found no merit in the appellant's claims about the trial judge's directions regarding inadmissible evidence, as the directions were appropriate and did not unfairly prejudice the appellant.

The Court of Appeal dismissed the appeal against conviction, finding that the jury's verdict was reasonable and supported by the evidence. The court held that there was no miscarriage of justice due to the admission or rejection of evidence. The appeal was dismissed, and the convictions were upheld.

ORDERS:
The appeal against conviction is dismissed.

Orders

Orders of the court

The appeal against conviction is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The case against the appellant originally went to trial in March 2014 on a different indictment. On that occasion, the appellant was convicted of three counts of rape, deprivation of liberty and aggravated indecent treatment and acquitted of two counts (indecent treatment and attempted rape). He successfully appealed against his convictions, a retrial was ordered[1] and the indictment with which the present appeal is concerned was presented. It did not charge the two offences on which the appellant had been acquitted.[1]R v PAS [2014] QCA 289.The evidence at trial The complainant was born in July 1997. The appellant was her mother’s partner. The events the subject of the charges occurred on a single occasion on an unknown date between 1 April 2006 and 1 April 2008 when the complainant was between eight and 10 years old. The appellant formally admitted the complainant’s date of birth; that between 30 October 2006 and 1 April 2008 he was the registered owner of a white Ford Falcon utility, registration number 872 CAJ; that in 2012 and 2013 the complainant’s mother was in a relationship with and living with BR; and that, on an unknown date between mid-2012 and early 2013, BR, when cleaning his house, found four pages of notes written by the complainant which he showed to the complainant’s mother and were provided to police on 20 March 2013. The complainant gave a detailed statement to police in an interview conducted in June 2011 when she was 13 years old. This was tendered under s 93A Evidence Act 1977 (Qld).[2] It had excised from it all reference to the two charges on which the appellant was acquitted.[2]Exhibit 3. When police asked her what she had come to talk to them about she gave the following account. She was raped when she was seven or eight by her former stepfather, the appellant. In 2005 they moved into her grandfather’s house. The appellant and her mother were living there in a caravan and the complainant was sharing a bedroom in the house with her brother. One morning the appellant “snuck” in and said he had a fight with her mother. He asked her to let him stay for a while before he went to work. She told him to get out but he started feeling her “boobs” and her vagina. She told him to stop but he would not listen. She slowly started to scream. He left because her grandfather was in the lounge room.[3] (This conduct was not the subject of any charge.)[3]Police interview, p 8, AB 184. Nothing further happened for some time. She moved with her family to another house. The appellant would always beat her mother; put knives against her head and the back of her throat; pull her hair; drag her upstairs and bash her. He sometimes threatened to kill her. At this new house she and her younger sister, T, shared a bedroom. One night when she was about 10 or 11, she went with him in his car to get dinner from McDonald’s. They drove past McDonald’s. He said they were going to Subway. They drove past Subway. He said it was shut and drove to Hungry Jack’s. He started to feel up her leg and his hand moved towards her vagina. She told him to stop and he did. They collected dinner from Hungry Jack’s. He drove straight past their house. She asked why there were not going home and said she wanted to go home. He told her she was not going home and they drove past her grandfather’s house a couple of times. She tried to jump out but the appellant grabbed her, punched her across the face and locked the car door. She was crying. They drove past her grandfather’s friend’s house. She was screaming to be let out saying that she just wanted to go home and see her Mum. He told her that she was “not fucking going home;” she was staying with him. She kept screaming and crying. He drove to an industrial area (count 1: deprivation of liberty).[4][4]Above, p 9, AB 185.

Decision

Reasons for decision

For these reasons this ground of appeal is not made out.Conclusion As the appellant has not made out either ground of appeal, the appeal against conviction must be dismissed. MORRISON JA: I have read the reasons of Margaret McMurdo P and agree with those reasons and the order her Honour proposes. ATKINSON J: I have had the advantage of reading the reasons for judgment of McMurdo P. I agree with those reasons and with the order her Honour proposes.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v PAU [2016] QCA 197
PARTIES:	R v PAU (appellant)
FILE NO/S:	CA No 162 of 2015 DC No 1326 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 16 July 2015
DELIVERED ON:	5 August 2016
DELIVERED AT:	Brisbane
HEARING DATE:	23 May 2016
JUDGES:	Margaret McMurdo P and Morrison JA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The appeal against conviction is dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the complainant’s evidence was supported by other evidence – where the jury was entitled to reject the appellant’s evidence – where the primary judge gave appropriate judicial directions that the jury must not convict unless satisfied of the complainant’s evidence beyond reasonable doubt CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant alleges inadmissible evidence of past acquittals was improperly before the jury in the complainant’s statement to police – where the appellant alleges the primary judge did not warn the jury as to the use of the inadmissible evidence – where the evidence referred to uncharged acts and was not about the counts on which the appellant had been acquitted at an earlier trial – where the primary judge directed the jury about two other episodes of uncharged acts relied on by the prosecution – where a specific direction about the evidence would have unnecessarily drawn the jury’s attention to imprecise language of a 13 year old – whether there was a miscarriage of justice MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited R v GAP [2013] 1 Qd R 427; [2012] QCA 193, cited R v PAS[2014] QCA 289, related
COUNSEL:	The appellant appeared on his own behalf S J Farnden for the respondent
SOLICITORS:	The appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent