R v Sdu

Case [2022] QCA 176

SUPREME COURT OF QUEENSLAND

CITATION:

R v SDU [2022] QCA 176

PARTIES:

R
v
SDU
(appellant)

FILE NO/S:

CA No 201 of 2021
DC No 280 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Mackay – Date of Conviction: 22 July 2021 (Dick SC DCJ)

DELIVERED ON:

16 September 2022

DELIVERED AT:

Brisbane

HEARING DATE:

19 July 2022

JUDGES:

Bond JA and North and Henry JJ

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – GENERAL PRINCIPLES – where the appellant was convicted on two counts of rape of his daughter by a jury – where the appellant participated in a police interview – where the appellant denied any sexual touching of his daughter at the interview – where the Crown Prosecutor submitted in closing address that the appellant was not sincere at the interview and that his denials should be rejected – whether there was a risk that the jury could have inferred guilt from lies from answers relevant only to the credit of the appellant’s account – whether a direction should have been given

CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – GENERAL PRINCIPLES – where the complainant described background relationship evidence during police interviews – whether that evidence included reference to uncharged acts – where no direction was sought by counsel re uncharged acts – whether a direction re uncharged acts should have been given – whether it is reasonably possible the failure to direct the jury may have affected the verdict

Evidence Act 1977 (Qld), s 132B(2)

Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, cited
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63, cited
GBF v The Queen (2020) 94 ALJR 1037; (2020) 384 ALR 569; [2020] HCA 40, cited
Hamilton (a pseudonym) v The Queen (2021) 95 ALJR 894; (2021) 394 ALR 194; [2021] HCA 33, cited
HML v The Queen (2008) 235 CLR 334; [2008] HCA 16, cited
R v ABD[2019] QCA 72, cited
Roach v The Queen (2011) 242 CLR 610; [2011] HCA 12, cited
Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28, cited

COUNSEL:

R G Logan for the appellant
P J McCarthy QC, with C M Georgouras, for the respondent

SOLICITORS:

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

  1. BOND JA:  I agree with the reasons for judgment of Henry J and with the order proposed by his Honour.

  2. NORTH J:  I agree with the reasons of Henry J and that the appeal be dismissed.

  3. HENRY J:  The appellant appeals his rape convictions on grounds that the learned trial judge failed to direct the jury about lies and uncharged acts.

  4. No…

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Details
AGLC
R v Sdu [2022] QCA 176
Case
[2022] QCA 176
Decision Date

CaseChat Overview and Summary

The appellant appealed against his conviction on two counts of raping his daughter. The appellant denied any sexual touching during a police interview. The Crown Prosecutor argued in closing address that the appellant's denials should be rejected as he was not being sincere. The court considered whether there was a risk that the jury could infer guilt from lies from answers relevant only to the credit of the appellant’s account and whether a direction should have been given. The court also considered whether the complainant's description of background relationship evidence during police interviews included reference to uncharged acts and whether a direction re uncharged acts should have been given.

The court found that the appellant had not established a miscarriage of justice. The court found that the appellant necessarily argued the directions were needed to avoid misuse of evidence in circumstances where that risk was remote. The court held that the Crown Prosecutor’s closing address did not suggest that the jury could infer guilt from lies from answers relevant only to the credit of the appellant’s account. The court found that the complainant's description of background relationship evidence during police interviews did not include reference to uncharged acts. The court held that the failure to direct the jury on uncharged acts was not reasonably possible to have affected the verdict.

The appeal was dismissed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

No such directions were sought below. The appellant therefore assumes the challenge of establishing, pursuant to s 668E(1) Criminal Code (Qld), not that there was a wrong decision of law but that the alleged failure to give the directions means there was a miscarriage of justice. It is a formidable challenge because the appellant necessarily argues the directions were needed to avoid misuse of evidence in circumstances where that risk was remote.Background The appellant was tried and convicted on an indictment charging him with two counts of rape. The complainant in each instance was his daughter. The alleged penetration was digital. Count 1 was alleged to have occurred when the family of the appellant and complainant were living in Sarina. The complainant was about nine or 10 years old. She was asleep on the lounge couch at night and awoke to discover her father, who had come home drunk, had pulled her leggings down and was moving his fingers fast in her vagina. She lay still, not knowing what to do. After a while her father moved to the other end of the couch. She went to the toilet and then lay down in another room with her mother. Count 2 alleged another digital rape some years later in the latter part of 2018 when the complainant was 13 and the family was living in Mackay. On this occasion the complainant was asleep in her locked bedroom and awoke to discover her father had unlocked the door, entered and had again put his fingers in her vagina, in this instance by pulling her underwear to the side. She was scared and did not know what to do after waking up. Her father then walked out of the room. The complainant made no immediate complaint to others. Later, during 2019, she made a number of non-detailed disclosures. She told her boyfriend that her father would come into her room while she was trying to sleep and do things to her, that it first started when she was nine or 10 and her father would sometimes be outside of her room “saying stuff like take off your clothes”. The complainant also wrote a note which was discovered by her mother in 2019. The complainant kept the note. She later showed it to a school friend and then destroyed it. The complainant’s mother testified that, in the note, the complainant wrote about having troubles with her boyfriend and also mentioned “that her dad had been touching her”. Her mother spoke with the complainant about the letter and the complainant told her mother that the appellant had touched her, though no detail of the type of touching was given. The complainant’s mother testified there was then a conversation between her, the complainant and the appellant about the note and that the conversation ended with the complainant giving her father a hug and a kiss. There was no evidence any detail of the type of touching was given in that conversation either. The complainant also showed the note, which was subsequently destroyed, to a schoolfriend of hers. The schoolfriend testified that the note referred to a variety of problems the complainant was having and that part of it mentioned “something about her dad touching her” and that he “used to like do things to her”. Her schoolfriend asked the complainant about that and the complainant said that she had woken up and he was next to her, touching her and “put his fingers really close to her privates”.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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