R v Sun

Case [2018] QCA 24

SUPREME COURT OF QUEENSLAND

CITATION:

R v Sun [2018] QCA 24

PARTIES:

R
v
SUN, Yu-Feng
(appellant)

FILE NO/S:

CA No 121 of 2017
DC No 1179 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 24 May 2017 (Durward SC DCJ)

DELIVERED ON:

6 March 2018

DELIVERED AT:

Brisbane

HEARING DATE:

10 October 2017

JUDGES:

Fraser and McMurdo JJA and Boddice J

ORDER:

The appeal be dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of one count of causing a person to take a drug with intent to stupefy the person to enable a sexual act to be engaged in with the person and one count of unlawful and indecent assault – where the complainant lived in a house with the appellant and the appellant’s wife – where the appellant gave the complainant a drink after a celebration at the house – where the complainant described experiencing symptoms consistent with ingesting Rohypnol in text messages to a friend – where the complainant took a urine sample before going to bed – where the complainant awoke in bed to find a man on her bed and her underwear and pants removed – where the appellant was the only man in the house – where the appellant’s sleeping wife was not disturbed by sounds from the complainant – where the complainant’s urine and hair samples contained traces of Rohypnol – where DNA taken from the complainant’s pillow case and pyjama top was likely to have included that of the appellant – where the complainant reported experiencing similar symptoms at the house on two prior occasions – where the appellant’s ground of appeal was that the verdicts were unreasonable – whether it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of each offence

Hocking v Bell (1945) 71 CLR 430; [1945] HCA 16, cited
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, applied
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, applied

COUNSEL:

J R Hunter QC for the appellant
T A Fuller QC for the respondent

SOLICITORS:

Dante Chen Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. FRASER JA:  I agree with the reasons for judgment of McMurdo JA and the order proposed by his Honour.

  2. McMURDO JA:  After an eight day trial before a jury in the District Court, the appellant was convicted of one count of causing a woman to take a drug with intent to stupefy her to enable a sexual act to occur with her, and one count of unlawfully and indecently assaulting her.  The offences…

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AGLC
R v Sun [2018] QCA 24
Case
[2018] QCA 24
Decision Date

CaseChat Overview and Summary

The appellant, Sun, was convicted of causing a person to take a drug with intent to stupefy them to enable a sexual act to be engaged in, and of unlawful and indecent assault. The appellant was living with the complainant and his wife. The complainant was given a drink by the appellant after a house party. She later awoke to find the appellant on her bed with her underwear and pants removed. The complainant’s urine and hair samples contained traces of Rohypnol and DNA evidence was likely to have included that of the appellant. The appellant appealed against his conviction on the ground that the verdicts were unreasonable.

The legal issue before the court was whether it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of each offence. The court considered the evidence presented to the jury. There was scientific evidence supporting the timeline of the complainant’s testimony, and the presence of Rohypnol with a bittering agent might not have been discerned in the Calpis. The court held that the jury was presented with a strong circumstantial case and it was open to them to conclude that the appellant had been in the complainant’s room and had given her Rohypnol. There was no other male in the house, and the house was secure. The evidence of the notoriety of Rohypnol as a "date rape drug" also supported the case against the appellant.

The court held that the appeal should be dismissed. The court found that the evidence presented a strong case that on the night in question, the complainant suffered from the effects of Rohypnol. The court was satisfied that it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of each offence.

Orders

Orders of the court

The appeal be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellant was interviewed by police on 7 March 2015. He denied that he had drugged or sexually assaulted the complainant. He said that all of the keys to his house had been accounted for and that he had checked the house was secure before going to bed in the early hours of that morning.The defence evidence The appellant gave evidence denying the offences. He also called a former occupant of the house, who had attended the Chinese New Year’s Eve celebration on the evening in question. The witness said that shortly after dinner, the complainant had said that she felt unwell and went to her room, returning at about 9.30 pm to say goodnight to her as she left.The appellant’s submissions For the appellant, it is submitted that it was not open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt, having regard particularly to these matters:·there was no evidence that the appellant had ever had possession of or access to Rohypnol;·although when Rohypnol is sold commercially, it is supplied with colouring and bittering agents, the complainant said that the Calpis had a normal taste;·the complainant’s comment in a text to her friend on the morning after the event, about the intruder being possibly a “ghost”, which suggested that she had suffered a drug-induced hallucination;·the appellant’s wife, a light sleeper, was not disturbed by scream or shout by the complainant;·the evidence of the other guest at the dinner, that before being offered the Calpis, the complainant was unwell, suggesting that any drug was ingested other than at the hands of the appellant;·the DNA evidence was unremarkable, given the appellant’s presence in the household and the possibilities of a transfer of his DNA other than by the incident in her bedroom.The respondent’s submissions For the respondent, it is said that the jury was presented with a strong circumstantial case. The scientific evidence supported the timeline of the complainant’s testimony, that she had ingested Rohypnol at some time between November 2014 and February 2015, but not after that date. It is submitted that the presence of Rohypnol with a bittering agent might not have been discerned in Calpis which was described[1] as a beverage tasting like sour milk or yoghurt. Similarly, it is said that black sesame milk or green tea jelly might have a distinctive flavour which would disguise the bitter flavour of Rohypnol.[1]By the guest who gave evidence in the defence case. As to the appellant’s wife not hearing the complainant calling out, it is submitted that this could be explained by some imprecision, as a result of the complainant’s evidence being given through an interpreter, in the description of her response to the intruder. It is submitted that the comment about a “ghost” was of little moment, coupled as it was with her expressed concern about pregnancy and disease. Further, it is pointed out that the complainant moved out of the house on the following day and promptly sought medical attention, which demonstrated her belief that she had been drugged and assaulted.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The respondent’s argument also points to the lack of any evidence suggesting the presence of any other male in the house and that the evidence was that the house had been checked as secure and that there were no missing keys nor signs of a forced entry. It is submitted that it was therefore the appellant who was the only male with the opportunity to have been in the complainant’s room and to have given her Rohypnol.Consideration The question is whether, on this Court’s independent assessment of the evidence at the trial, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of each offence.[2] In R v Baden-Clay,[3] the High Court stressed that the setting aside of a jury’s verdict on the ground that it is unreasonable is a serious step, because of the role of the jury as “the constitutional tribunal for deciding issues of fact”,[4] in which the court must have “particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.”[5][2]SKA v The Queen (2011) 243 CLR 400 at 405-406 [11]-[14]; [2011] HCA 13.[3](2016) 258 CLR 308 at 329 [65]; [2016] HCA 35.[4]Ibid, citing Hocking v Bell (1945) 71 CLR 430 at 440; [1945] HCA 16.[5]R v Baden-Clay (2016) 258 CLR 308 at 329 [65]; [2016] HCA 35; citing M v The Queen (1994) 181 CLR 487 at 494; [1994] HCA 63; and MFA v The Queen (2002) 213 CLR 606 at 621 - 622 [49]‑[51], 623 [56]; [2002] HCA 53. The evidence presented a strong case that on the night in question, the complainant suffered from the effects of Rohypnol. The substance was detected in a sample of urine. It was also found in testing samples of her hair. The credibility of the complainant’s own account of her symptoms was supported by her contemporaneous description of her condition in her text messages. The symptoms of which she complained were those to be expected from Rohypnol. It was open to the jury to conclude that there had been a man in her room, as she described in her evidence. Indeed, she was not challenged in cross-examination in that respect, although it was later argued to the jury that she might have imagined the incident, under the influence of a drug. That was a possibility that required consideration, although it had not been put in cross-examination. But it was open to the jury to reject it and to accept her evidence. As the respondent submits, her actions over the following few days showed a certainty in her mind that she had been drugged and assaulted. The evidence from the appellant’s wife that she heard no shout or scream was not irreconcilable with the complainant’s evidence of the incident in her room. If the jury concluded that she had been affected by Rohypnol and that she had been assaulted by a man in her room as she described, the case against the appellant was strong. There was no other male living or visiting the house. On the appellant’s own evidence, the house was secure. The ingestion of Rohypnol and the presence of the male were unlikely to have been coincidental: the strong likelihood was that she was assaulted by the person who had caused her to take the Rohypnol. There was evidence of the notoriety of Rohypnol as a “date rape drug”.