R v Sei - [2024] QCA 128

SUPREME COURT OF QUEENSLAND

CITATION:

R v SEI [2024] QCA 128

PARTIES:

R
v
SEI
(appellant)

FILE NO/S:

CA No 256 of 2023
DC No 2554 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 27 November 2023 (Gardiner DCJ)

DELIVERED ON:

Date of Orders: 6 June 2024
Date of Publication of Reasons: 12 July 2024

DELIVERED AT:

Brisbane

HEARING DATE:

6 June 2024

JUDGES:

Bond and Flanagan JJA and Bradley J

ORDERS:

Date of Orders: 6 June 2024

1.   The appeal is allowed.

2.   The convictions are set aside.

3.   A new trial is ordered on both counts of the indictment.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant was convicted by a jury of one count of exposing a child to an indecent act and one count of indecently dealing with the same child – where it was admitted that the child attended a hospital two days after the alleged offending and presented with abdominal pain and pain passing urine – where it was admitted that a test of the child’s urine indicated blood was present in it – where it was admitted that a paediatric doctor expressed an opinion that the presence of blood in the child’s urine was more likely caused by “irritation” rather than a urinary tract infection (the impugned evidence) – where, in the Crown's closing, the Crown prosecutor said that the irritation could “be caused by rubbing or touching, which is what [the child] says happened” and “was consistent with touching in the area of the vagina” as the child had described and demonstrated to police – where no directions relating to how the jury should deal with the impugned evidence or the statements by the Crown prosecutor were sought by the appellant and no directions were made – whether the Crown prosecutor invited the jury to engage in speculative reasoning – whether there was a miscarriage of justice

Criminal Code (Qld), s 668E(1), s 668E(1A)

HCF v The Queen (2023) 97 ALJR 978; [2023] HCA 35, cited
Orreal v The Queen (2021) 274 CLR 630; [2021] HCA 44, cited
R vMarkuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, cited

COUNSEL:

J B Horne for the appellant
S L Dennis for the respondent

SOLICITORS:

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

THE COURT: On 6 June 2024, at the conclusion of the hearing of this appeal, the Court ordered that:
(a)the appeal is allowed;
(b)the convictions are set aside; and
(c)a new trial is ordered on both counts of the indictment.
The Court made those orders for the following reasons.
Overview
The appellant was convicted by a jury of two counts of indecent treatment of a child under 12, after a trial in the District Court. The first count…

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 Sei

Details

AGLC: R v Sei [2024] QCA 128
Case: [2024] QCA 128
Decision Date: 6 June 2024

CaseChat Overview and Summary

The appellant, R, was convicted by a jury of one count of exposing a child to an indecent act and one count of indecently dealing with the same child. The appellant appealed against his convictions on the basis of a miscarriage of justice. The basis for the appeal was the admission of certain evidence and the failure of the trial judge to direct the jury on how to deal with it. Specifically, the appellant claimed that the admission of evidence regarding the presence of blood in the child's urine and the paediatric doctor's opinion that it was likely caused by irritation amounted to a miscarriage of justice. The appellant also argued that the Crown prosecutor's closing statements invited the jury to engage in speculative reasoning about the impugned evidence, and that the trial judge failed to direct the jury on how to deal with this evidence.

The court was required to decide whether the admission of the impugned evidence and the Crown prosecutor's closing statements amounted to a miscarriage of justice, and whether the trial judge failed to direct the jury on how to deal with this evidence. The court had to consider whether the impugned evidence was admissible, and if so, whether the trial judge should have directed the jury on how to deal with it. The court also had to consider whether the Crown prosecutor's closing statements invited the jury to engage in speculative reasoning, and if so, whether this amounted to a miscarriage of justice.

The court found that the impugned evidence was admissible, but that the trial judge should have directed the jury on how to deal with it. The court held that the paediatric doctor's opinion that the presence of blood in the child's urine was likely caused by irritation was relevant to the charges against the appellant. However, the court found that the trial judge failed to direct the jury on how to deal with this evidence, and that this amounted to a miscarriage of justice. The court also found that the Crown prosecutor's closing statements invited the jury to engage in speculative reasoning about the impugned evidence, and that this also amounted to a miscarriage of justice. The court held that the appellant's convictions should be set aside and a new trial ordered on both counts of the indictment.

The court ordered that the appeal be allowed, the convictions be set aside, and a new trial be ordered on both counts of the indictment.

Orders

Orders of the court

Date of Orders: 6 June 2024

1. The appeal is allowed.

2. The convictions are set aside.

3. A new trial is ordered on both counts of the indictment.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Paragraph 6 of the admissions document (the impugned evidence) is in issue. It reads:“Further testing of [the child’s] urine by the hospital indicated the presence of white blood cells but no bacterial growth. In the opinion of the paediatric doctor these results were unlikely to be the result of an infection and were more likely to have been caused by irritation.” The admissions document did not state whether the paediatric doctor's opinion was proved as a fact by the admission in paragraph 6 or whether all that was proved was that the doctor expressed the opinion. The appellant contends that a miscarriage of justice occurred. First, he says there was a miscarriage by reason of the admission of the impugned evidence and the Crown prosecutor’s invitation to the jury to engage in speculative reasoning about it. Second, he says there was a miscarriage because the learned trial judge failed to direct the jury about the use that could be made of the impugned evidence.The course of the trial The trial took place over four days.Pre-trial exchanges with counsel On the morning of Wednesday 22 November 2023, before the trial commenced, the Crown prosecutor informed the trial judge that the parties were “trying to resolve admissions in relation to the evidence [a doctor] had indicated she might give.” The Crown prosecutor said the doctor was not available to give evidence at the trial. “If those admissions can be resolved there won’t be a need to call a doctor”. The trial judge told the Crown prosecutor he was “wondering what possible relevance the doctor’s evidence has to the nature of the complaints.” The Crown prosecutor said:“The doctor’s evidence went to indicating that an opinion that it was likely from irritation what she presented with. And that an irritation can be from touching, your Honour. So it’s relevant to that, but there’s also the statements – appear to be made by the child about what happened.… It’s not – what appears to have been said is not inconsistent with what the child says generally happened.” The trial judge asked, “But what’s the point of the evidence? Why’s it being led?” The Crown prosecutor replied:“The point of the evidence is that she went to the hospital complaining of abdominal pain and pain in – and urinating as well. The allegation is that she was touched in that area by the defendant.” The Crown prosecutor clarified that she was referring to “the vaginal area”, and continued: “She says that – she describes what he was doing about being – he touched her on the outside of her pants on the vagina. She points down to where it was … and talked about his hand going in circles. … But she also said – on the outside of her clothes. Yes. There’s no allegation of the inside of vagina.” The trial judge asked again about the relevance of the testing of the child’s urine. The Crown prosecutor said it was relevant because: “the opinion is that it’s from …secondary to irritation or possibly trauma and sexual abuse.… It’s not inconsistent, in my submission, in relation to what she says happened.”

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v SEI [2024] QCA 128
PARTIES:	R v SEI (appellant)
FILE NO/S:	CA No 256 of 2023 DC No 2554 of 2022
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 27 November 2023 (Gardiner DCJ)
DELIVERED ON:	Date of Orders: 6 June 2024 Date of Publication of Reasons: 12 July 2024
DELIVERED AT:	Brisbane
HEARING DATE:	6 June 2024
JUDGES:	Bond and Flanagan JJA and Bradley J
ORDERS:	Date of Orders: 6 June 2024 1. The appeal is allowed. 2. The convictions are set aside. 3. A new trial is ordered on both counts of the indictment.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant was convicted by a jury of one count of exposing a child to an indecent act and one count of indecently dealing with the same child – where it was admitted that the child attended a hospital two days after the alleged offending and presented with abdominal pain and pain passing urine – where it was admitted that a test of the child’s urine indicated blood was present in it – where it was admitted that a paediatric doctor expressed an opinion that the presence of blood in the child’s urine was more likely caused by “irritation” rather than a urinary tract infection (the impugned evidence) – where, in the Crown's closing, the Crown prosecutor said that the irritation could “be caused by rubbing or touching, which is what [the child] says happened” and “was consistent with touching in the area of the vagina” as the child had described and demonstrated to police – where no directions relating to how the jury should deal with the impugned evidence or the statements by the Crown prosecutor were sought by the appellant and no directions were made – whether the Crown prosecutor invited the jury to engage in speculative reasoning – whether there was a miscarriage of justice Criminal Code (Qld), s 668E(1), s 668E(1A) HCF v The Queen (2023) 97 ALJR 978; [2023] HCA 35, cited Orreal v The Queen (2021) 274 CLR 630; [2021] HCA 44, cited R vMarkuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, cited
COUNSEL:	J B Horne for the appellant S L Dennis for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Direct of Public Prosecutions (Queensland) for the respondent