R v. Siulai - [2008] QCA 382

SUPREME COURT OF QUEENSLAND

CITATION:

R v Siulai [2008] QCA 382

PARTIES:

R
v
SIULAI, Malaefou
(appellant)

FILE NO/S:

CA No 148 of 2008
DC No 1169 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

4 December 2008

DELIVERED AT:

Brisbane

HEARING DATE:

26 November 2008

JUDGES:

de Jersey CJ, Holmes JA and White AJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant was convicted on four counts of indecent dealing with a girl in his care under the age of 12 years – where in relation to the girl in his care, the appellant was also convicted of exposing her to indecent films, wilful exposure, and maintaining a sexual relationship – appellant sentenced to concurrent terms of three and a half years imprisonment with respect to the maintaining count, and 18 months with respect to each other count – complainant’s evidence pre-recorded – where the jury communicated an express request to re-watch the tapes of the complainant’s pre-recorded evidence – whether the learned trial Judge erred in allowing the jury to re-watch the tapes

Evidence Act 1977 (Qld), s 93A

Gately v The Queen (2007) 232 CLR 208; [2007] HCA 55, considered
Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, considered
R v H [1999] 2 Qd R 283; [1998] QCA 348, considered
R v KS (2007) 176 A Crim R 419; [2007] QCA 335, applied
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, considered

COUNSEL:

K A Mellifont for the appellant
D L Meredith for the respondent

SOLICITORS:

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

de Jersey CJ: The appellant appeals against his conviction on a number of counts in relation to a girl under his care and under the age of 12 years, maintaining a sexual relationship, wilful exposure, exposing to indecent films and four of indecent dealing.

The offences were allegedly committed over the period 10 April 2001 to 9 December 2004. Police officers conducted an interview of the complainant under s 93A of the Evidence Act 1977 (Qld) on 16 December 2004. The complainant’s evidence was pre-recorded on 11 August 2006. The trial occupied the period 6 to 9 May 2008.

Only ground two in the notice of appeal was pursued. It is in the following terms:

“His Honour the learned trial Judge erred in allowing the jury to watch the video tapes of the complainant’s evidence in chief (s 93A tape) and the complainant’s cross examination (s 21AK tape) as opposed to having the complainant’s evidence read back to them in light of the note sent by the jury to His Honour at the time of retiring for deliberations,…

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. Siulai

Details

AGLC: R v Siulai [2008] QCA 382
Case: [2008] QCA 382
Decision Date: 4 December 2008

CaseChat Overview and Summary

The appeal in R v. Siulai involved the appellant, Siulai, who had been convicted on four counts related to indecent dealings with a girl under 12 years old who was in his care. Additionally, he was convicted of exposing her to indecent films, wilful exposure, and maintaining a sexual relationship. The appellant was sentenced to concurrent terms of imprisonment, specifically three and a half years for the maintaining count and 18 months for each of the other counts. The central issue before the court was whether the trial judge had erred in permitting the jury to re-watch the pre-recorded evidence of the complainant. The complainant’s evidence had been recorded prior to the trial, and the jury had communicated a request to re-watch this evidence during their deliberations.

The legal issue revolved around whether the trial judge’s decision to allow the jury to re-watch the pre-recorded evidence amounted to a miscarriage of justice or constituted other irregularities that could warrant an appeal. The court had to determine if this action fell within the bounds of acceptable judicial discretion or if it constituted a fundamental procedural error that undermined the fairness of the trial. The appellant's counsel argued that the re-watching of the evidence could have influenced the jury’s perception and potentially skewed their assessment of the complainant’s credibility.

The court, in its reasoning, found that the trial judge’s decision to allow the jury to re-watch the pre-recorded evidence did not constitute a miscarriage of justice or any other irregularity that would necessitate a new trial. The court held that the trial judge had acted within the scope of judicial discretion, considering the practicalities of jury deliberations and the need to ensure a fair trial. The court concluded that the action did not unfairly prejudice the appellant, nor did it violate any procedural principles that would warrant an appeal. Consequently, the appeal was dismissed, and the original convictions and sentences were upheld.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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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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CITATION:	R v Siulai [2008] QCA 382
PARTIES:	R v SIULAI, Malaefou (appellant)
FILE NO/S:	CA No 148 of 2008 DC No 1169 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	4 December 2008
DELIVERED AT:	Brisbane
HEARING DATE:	26 November 2008
JUDGES:	de Jersey CJ, Holmes JA and White AJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed
CATCHWORDS:	APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant was convicted on four counts of indecent dealing with a girl in his care under the age of 12 years – where in relation to the girl in his care, the appellant was also convicted of exposing her to indecent films, wilful exposure, and maintaining a sexual relationship – appellant sentenced to concurrent terms of three and a half years imprisonment with respect to the maintaining count, and 18 months with respect to each other count – complainant’s evidence pre-recorded – where the jury communicated an express request to re-watch the tapes of the complainant’s pre-recorded evidence – whether the learned trial Judge erred in allowing the jury to re-watch the tapes Evidence Act 1977 (Qld), s 93A Gately v The Queen (2007) 232 CLR 208; [2007] HCA 55, considered Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, considered R v H [1999] 2 Qd R 283; [1998] QCA 348, considered R v KS (2007) 176 A Crim R 419; [2007] QCA 335, applied R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, considered
COUNSEL:	K A Mellifont for the appellant D L Meredith for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent