R v RAI - [2011] QCA 64

SUPREME COURT OF QUEENSLAND

CITATION:

R v RAI [2011] QCA 64

PARTIES:

R
v
RAI
(appellant)

FILE NO/S:

CA No 15 of 2010
DC No 412 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

12 April 2011

DELIVERED AT:

Brisbane

HEARING DATE:

25 February 2011

JUDGES:

White JA, Margaret Wilson AJA, Ann Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The appeal is dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – where appellant convicted after a three day trial before a jury in the District Court of two counts of rape, two counts of unlawful carnal knowledge and one count of attempting to procure an intellectually impaired person to commit an indecent act – where appellant appeals convictions on the grounds that a miscarriage of justice occurred due to the trial judge’s failure to determine whether the appellant was capable of understanding the proceedings in accordance with s 613 of the Criminal Code 1899 (Qld) – where evidence the appellant has borderline intellectual functioning and behavioural difficulties – where at times during the proceeding the appellant was represented by his mother who had no legal training – whether a miscarriage of justice occurred

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – where appellant also appeals against his convictions on the ground that a miscarriage of justice occurred due to inconsistencies in the proceedings – where appellant argues there was an inconsistency between the conduct by his solicitor at the pre-recording of the complainant’s evidence and the conduct of the trial before the jury where he was represented by his mother – where “14 solicitors and six barristers” had either withdrawn or been dismissed by the appellant – whether the way the proceedings were conducted on the appellant’s behalf led to a miscarriage of justice

Criminal Code 1899 (Qld), s 26, s 613
Evidence Act 1977 (Qld), s 21A

R v Ogawa[2009] QCA 307, followed
R v Presser [1958] VR 45; [1958] VicRp 9, followed

COUNSEL:

S J Hamlyn-Harris for the appellant
M J Copley SC for the respondent

SOLICITORS:

Fisher Dore Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

WHITE JA: I have read the reasons for judgment of Ann Lyons J and agree with her Honour that the appeal should be dismissed for the reasons that she gives.

MARGARET WILSON AJA: The appeal should be dismissed. I agree with the reasons for judgment of Ann Lyons J.

ANN LYONS J: The appellant, Mr RAI is 49 years of age. He has borderline intellectual functioning and behavioural difficulties probably as a result of brain damage which he sustained in an accident when he was 13 years old.

The appellant was charged with a number of sexual offences all…

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 RAI

Details

AGLC: R v RAI [2011] QCA 64
Case: [2011] QCA 64
Decision Date: 12 April 2011

CaseChat Overview and Summary

The case of R v RAI involved an appeal against the appellant’s convictions for various sexual offences. The appellant was convicted after a trial in the District Court, following which he appealed to a higher court. The grounds for appeal included claims of a miscarriage of justice due to the trial judge’s failure to assess the appellant’s capacity to understand the proceedings under s 613 of the Criminal Code 1899 (Qld), and due to alleged inconsistencies in the conduct of the trial.

The central legal issues before the court were whether the trial judge’s failure to properly assess the appellant’s understanding of the proceedings amounted to a miscarriage of justice, and whether the inconsistent representation of the appellant by different legal professionals led to a miscarriage of justice. The court had to consider whether the appellant’s intellectual capabilities and behavioural issues impacted his understanding and participation in the trial.

The court determined that there was no clear evidence before the trial judge at the time of the ruling that the appellant could not understand the proceedings. The judge had allowed the trial to proceed, keeping a watchful eye on whether any evidence of the appellant’s incapacity would emerge. The court found that the appellant was capable of giving instructions to his mother, who acted as his representative during the trial. Despite the appellant’s abusive behaviour towards previous legal representatives, there was no evidence suggesting that his mother did not understand or follow his instructions. Consequently, the court concluded that the appellant’s mother effectively conducted a defence on his behalf, and the appeal was dismissed.

In summary, the appeal was dismissed, affirming the convictions of the appellant.

Orders

Orders of the court

The appeal is dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

At that hearing his Honour also indicated that the material that was currently before him was inadequate when he said that “it’s very difficult for me to have regard to any evidence from a professional person about his lack of understanding.”[18][18]Appeal Record Book p 22 ll 18-20. There is no evidence Dr Jenkins ever saw Mr RAI. Neither does he state the basis upon which his conclusions were drawn. Whilst I note that Dr Jenkins states that there is information that Mr RAI was unable to instruct Counsel he does not state the basis for that information and whether it is his view. He is simply swearing the ultimate issue. Furthermore it was clear that Mr RAI was in fact giving instructions to his mother. Dr Jenkins considered she played a pivotal role in his functioning as he stated that Mr RAI “is clearly only able to function with the direct intervention and support of his mother at all stages”. Whilst Dr Keen had provided a report it was provided for a totally different forensic purpose and was over four years old. His Honour was therefore adopting the only appropriate course available which was to allow the matter to proceed to trial and to keep a watching brief to see whether any evidence about his inability to take part in the trial was revealed during the course of the trial. Considered objectively there was no clear evidence before the trial judge at that point that he was not able to understand the nature of the proceedings. His Honour’s ruling on 15 December 2010 was in essence a continuation of the approach he had already foreshadowed on 17 November 2009 when his Honour said:[19] Clearly, his Honour was aware of Mr RAI’s behavioural issues. Those behavioural issues however are totally separate from the question as to whether he had an understanding of the proceedings. Mr Fairlie’s observations to Judge Dodds on 22 November 2006 were in essence about behavioural issues. Although Mr RAI had already been arraigned, he was called on again at the commencement of the trial on 11 January 2010. His Honour obviously took that course to assure himself that Mr RAI understood the charges and his pleas in relation to them. There is nothing in the transcript which gives rise to concerns about Mr RAI’s understanding of the charges. In my view, a reading of the transcript of the trial as a whole similarly does not reveal anything to indicate that Mr RAI was not able to understand the nature of the evidence against him, give instructions about his response to the charges and have his version of events put to the witnesses. At the close of the prosecution case, Mr RAI made it very clear that he did not wish to give evidence. The transcript indicates that they were his very clear instructions. Mr RAI was not represented by counsel. Numerous legal representatives had in fact withdrawn over the three year period that the matter had taken to come to trial. It would seem that Mr RAI’s abusive behaviour towards those representatives was the major reason which prompted that course of action. Even Mr RAI’s mother had difficulty controlling his behaviour. However there is simply no indication that she did not understand what he wanted her to do in relation to the presentation of his case. A significant number of Mr RAI’s statements to his mother during the trial are recorded in the transcript. He clearly put his instructions and she followed his wishes. Whilst Mr RAI had none of the safeguards which come with having a competent counsel engaged on one’s behalf there is no doubt that his mother capably conducted a defence on his behalf.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v RAI [2011] QCA 64
PARTIES:	R v RAI (appellant)
FILE NO/S:	CA No 15 of 2010 DC No 412 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	12 April 2011
DELIVERED AT:	Brisbane
HEARING DATE:	25 February 2011
JUDGES:	White JA, Margaret Wilson AJA, Ann Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The appeal is dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – where appellant convicted after a three day trial before a jury in the District Court of two counts of rape, two counts of unlawful carnal knowledge and one count of attempting to procure an intellectually impaired person to commit an indecent act – where appellant appeals convictions on the grounds that a miscarriage of justice occurred due to the trial judge’s failure to determine whether the appellant was capable of understanding the proceedings in accordance with s 613 of the Criminal Code 1899 (Qld) – where evidence the appellant has borderline intellectual functioning and behavioural difficulties – where at times during the proceeding the appellant was represented by his mother who had no legal training – whether a miscarriage of justice occurred CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – where appellant also appeals against his convictions on the ground that a miscarriage of justice occurred due to inconsistencies in the proceedings – where appellant argues there was an inconsistency between the conduct by his solicitor at the pre-recording of the complainant’s evidence and the conduct of the trial before the jury where he was represented by his mother – where “14 solicitors and six barristers” had either withdrawn or been dismissed by the appellant – whether the way the proceedings were conducted on the appellant’s behalf led to a miscarriage of justice Criminal Code 1899 (Qld), s 26, s 613 Evidence Act 1977 (Qld), s 21A R v Ogawa[2009] QCA 307, followed R v Presser [1958] VR 45; [1958] VicRp 9, followed
COUNSEL:	S J Hamlyn-Harris for the appellant M J Copley SC for the respondent
SOLICITORS:	Fisher Dore Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent