R v Sudusinghe - [2020] QCA 74

SUPREME COURT OF QUEENSLAND

CITATION:

R v Sudusinghe [2020] QCA 74

PARTIES:

R
v
SUDUSINGHE, Samitha Vernon
(appellant)

FILE NO/S:

CA No 36 of 2019
DC No 578 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 1 February 2019 (Rafter SC DCJ)

DELIVERED ON:

17 April 2020

DELIVERED AT:

Brisbane

HEARING DATE:

2 April 2020

JUDGES:

Sofronoff P, Mullins JA and Boddice J

ORDER:

Appeal dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – DIRECTIONS AS TO PARTICULAR MATTERS – OTHER MATTERS – where the appellant was charged with one count of sexual assault, one count of rape, and one count of attempted rape – where the appellant was found guilty of sexual assault as an alternative to the count of rape and acquitted on the other counts – where the complainant complained to the appellant about inappropriate touching and covertly recorded the conversation – where the appellant when interviewed by the police denied receiving any complaint from a patient about inappropriate touching – where after being played the covert recording the appellant said he did remember the conversation – where the prosecution addressed the jury on the basis that the appellant’s initial denial about receiving a complaint from a patient about inappropriate touching was a lie that went to the appellant’s credit – whether the prosecution should have been allowed to address the jury on this asserted lie – whether trial judge’s directions adequately directed the jury on how to use the asserted lie relied on by the prosecution in assessing the credit of the appellant in respect of the other statements he made in the record of interview

APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – DIRECTIONS AS TO PARTICULAR MATTERS – OTHER MATTERS – where appellant was alleged to have made an admission as to inappropriate conduct towards the complainant – where the alleged admission did not contain specific reference to the acts charged – whether the trial judge’s direction to the jury in respect of how they could use the admission (if they accepted that the appellant had made the admission) was adequate

HML v The Queen (2008) 235 CLR 334; [2008] HCA 16, cited
R v BDJ[2020] QCA 27, considered
R v IE[2013] QCA 291, cited
R v M [1995] 1 Qd R 213; [1994] QCA 7, cited
R v PV, ex parte Attorney-General [2005] 2 Qd R 325; [2004] QCA 494, cited
R v Sakail [1993] 1 Qd R 312, considered
Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28 cited

COUNSEL:

B J Power, with L M Dollar, for the appellant
D Balic for the respondent

SOLICITORS:

George Criminal Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

SOFRONOFF P:

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 Sudusinghe

Details

AGLC: R v Sudusinghe [2020] QCA 74
Case: [2020] QCA 74
Decision Date: 17 April 2020

CaseChat Overview and Summary

Dr Sudusinghe appeals against his conviction for sexual assault. The dispute involves the admissibility of certain evidence and the adequacy of the trial judge's directions to the jury. The court was tasked with determining whether the prosecutor was correctly permitted to address the jury on the appellant's alleged lies and whether the trial judge's directions to the jury on the use of the alleged admissions were adequate.

The court found that the prosecutor should not have been permitted to address the jury on the alleged lies, as these were not matters before the jury. However, the court concluded that the error was not so substantial as to occasion a miscarriage of justice. The court also found that the trial judge's directions to the jury on the use of the alleged admissions were adequate, as the jury was properly directed on how to consider the evidence if they accepted that the appellant had made the admissions.

The appeal was dismissed, and the conviction for sexual assault stands. The court held that while there were errors in the conduct of the trial, they did not amount to a miscarriage of justice. The directions given to the jury were sufficient for them to properly consider the evidence, and the errors did not undermine the safety of the conviction.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Dr Sudusinghe now appeals against the verdict of guilty of sexual assault on the grounds that a miscarriage of justice was occasioned by:(1)the prosecutor being permitted to address the jury in relation to lies;(2)the directions given to the jury as to lies; and(3)the failure to instruct the jury adequately about the use to be made of alleged admissions made during a conversation with the witness Ms S.Summary of the relevant evidence The complainant for all counts consulted Dr Sudusinghe for medical appointments on 12 and 16 November 2015 in relation to her ongoing upper abdominal pain. Count 1 was based on the complainant’s evidence that Dr Sudusinghe slapped her bottom, as she was about to leave the consultation on 12 November 2015. Count 2 was based on the complainant’s evidence of touching by Dr Sudusinghe on the outside of her underwear, when she was lying on the examination table, during the consultation on 16 November 2015. The essence of her evidence was that Dr Sudusinghe pushed two fingers into her vulva by pressing with two fingers on top of her underwear. The complainant gave evidence that during the same consultation, Dr Sudusinghe had tried again to press his fingers into her vulva, but was not able to do so due to her closing her legs and expressing her dissent. That was the basis of count 3. The complainant made a complaint to police on 16 November 2015 and she was provided with a recording device. She returned for another appointment on 20 November 2015 and recorded her conversation with Dr Sudusinghe on that occasion. The covert recording was tendered at the trial. The relevant part of the recorded conversation was transcribed as follows: “COMPLAINANT: That's good. So I'm not worried too much with my, but anyway, Doctor Sam, remember I'm a little bit, what's this, a little bit not happy with the procedure that you done to me last Monday.SUDUSINGHE: What procedure?COMPLAINANT: When you touched my be-, between my legs.SUDUSINGHE: That's alright now, go home.COMPLAINANT: I said, oh, [INDISTINCT] Doctor Sam, why, why you been touching me without permission between my legs. I told you that's not the pain.SUDUSINGHE: Okay. I was just [INDISTINCT]COMPLAINANT: Because, you know, and you don't wear your gloves when you do that to me. I said, you see, [INDISTINCT]SUDUSINGHE: No. I w-, I was ah, I was tummy ah, checking your tummy. So we, we don't wear gloves when we [INDISTINCT]COMPLAINANT: But I was [INDISTINCT]SUDUSINGHE: Yeah.COMPLAINANT: WhySUDUSINGHE: [INDISTINCT]COMPLAINANT: [INDISTINCT] Why are you laughing?SUDUSINGHE: [INDISTINCT]COMPLAINANT: Why you laughing?SUDUSINGHE: [INDISTINCT] Yeah. I was crossing the borders, yes.COMPLAINANT: Okay. Anyway, Doctor Sam, thank you for this good result of mySUDUSINGHE: I, I did the examination and I organised this that’s it.COMPLAINANT: Yeah. Doctor Sam, between my legs, is that right?SUDUSINGHE: Yeah, yeah, yeah, I know.” The prosecution case was that there was no denial by Dr Sudusinghe in response to the complainant’s allegation that was recorded in the covert recording and that, in the circumstances where a specific proposition was put by the complainant, the absence of immediate denial followed by some sort of explanation, laughter, the statement “I was crossing the borders, yes”, and then followed by “Yeah, yeah, yeah, I know” were argued to be an admission to the conduct the subject of counts 2 and 3.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	R v Sudusinghe [2020] QCA 74
PARTIES:	R v SUDUSINGHE, Samitha Vernon (appellant)
FILE NO/S:	CA No 36 of 2019 DC No 578 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 1 February 2019 (Rafter SC DCJ)
DELIVERED ON:	17 April 2020
DELIVERED AT:	Brisbane
HEARING DATE:	2 April 2020
JUDGES:	Sofronoff P, Mullins JA and Boddice J
ORDER:	Appeal dismissed.
CATCHWORDS:	APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – DIRECTIONS AS TO PARTICULAR MATTERS – OTHER MATTERS – where the appellant was charged with one count of sexual assault, one count of rape, and one count of attempted rape – where the appellant was found guilty of sexual assault as an alternative to the count of rape and acquitted on the other counts – where the complainant complained to the appellant about inappropriate touching and covertly recorded the conversation – where the appellant when interviewed by the police denied receiving any complaint from a patient about inappropriate touching – where after being played the covert recording the appellant said he did remember the conversation – where the prosecution addressed the jury on the basis that the appellant’s initial denial about receiving a complaint from a patient about inappropriate touching was a lie that went to the appellant’s credit – whether the prosecution should have been allowed to address the jury on this asserted lie – whether trial judge’s directions adequately directed the jury on how to use the asserted lie relied on by the prosecution in assessing the credit of the appellant in respect of the other statements he made in the record of interview APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – DIRECTIONS AS TO PARTICULAR MATTERS – OTHER MATTERS – where appellant was alleged to have made an admission as to inappropriate conduct towards the complainant – where the alleged admission did not contain specific reference to the acts charged – whether the trial judge’s direction to the jury in respect of how they could use the admission (if they accepted that the appellant had made the admission) was adequate HML v The Queen (2008) 235 CLR 334; [2008] HCA 16, cited R v BDJ[2020] QCA 27, considered R v IE[2013] QCA 291, cited R v M [1995] 1 Qd R 213; [1994] QCA 7, cited R v PV, ex parte Attorney-General [2005] 2 Qd R 325; [2004] QCA 494, cited R v Sakail [1993] 1 Qd R 312, considered Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28 cited
COUNSEL:	B J Power, with L M Dollar, for the appellant D Balic for the respondent
SOLICITORS:	George Criminal Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent