R v TAE - [2016] QCA 133

SUPREME COURT OF QUEENSLAND

CITATION:

R v TAE [2016] QCA 133

PARTIES:

R
v
TAE
(appellant)

FILE NO/S:

CA No 158 of 2015
DC No 377 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 3 July 2015

DELIVERED ON:

24 May 2016

DELIVERED AT:

Brisbane

HEARING DATE:

15 April 2016

JUDGES:

Morrison and Philippides JJA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The appeal is dismissed.

CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO ALL THE EVIDENCE – where the appellant was convicted on a number of sexual offences, including indecent treatment of a child under 16, under 12 and in care; indecent treatment of a child under 16, and in care; rape; and attempted rape – where the appellant was in a relationship with the complainant’s mother between 2008 and January 2013 – where the complainant told the police in April 2013 that she had been sexually assaulted by the appellant a number of times between 2011 and 2013 – where a child witness, a friend of the complainant’s, gave evidence that the complainant told him about the sexual assaults – where the evidence of the complainant’s friend was significantly different to that of the complainant – where the appellant alleges that these are irreconcilable differences, and thus the complainant’s evidence cannot be believed beyond reasonable doubt – where the complainant’s evidence contained internal inconsistencies – where the appellant alleges that these inconsistencies create a doubt such as is referred to in M v The Queen – whether the verdict is unreasonable or insupportable having regard to all the evidence

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited
Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50, cited
R v PAH[2008] QCA 265, cited
R v Thaiday[2009] QCA 27, considered
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited

COUNSEL:

S C Holt QC, with B Dighton, for the appellant
M Cowen QC for the respondent

SOLICITORS:

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

MORRISON JA: The appellant, TAE, commenced a relationship with D in 2008, and moved in to live with D’s family. D’s daughter, K, was then eight years old. In April 2013 K complained to police that she had been sexually assaulted by TAE over a period of time.
On 3 July 2015 TAE was convicted of a number of sexual offences against K. The counts were:[1]
(a)Count 1: indecent treatment of a child under 16, under 12 and in care;
(b)Count 2: rape;
(c)Count 4: indecent treatment of a child under 16, and in care;
(d)Count 5: rape; and
(e)Count 6:…

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 TAE

Details

AGLC: R v TAE [2016] QCA 133
Case: [2016] QCA 133
Decision Date: 24 May 2016

CaseChat Overview and Summary

The appellant in the case of R v TAE was convicted on several counts of sexual offences, including indecent treatment of a child under 16, under 12 and in care, indecent treatment of a child under 16 and in care, rape, and attempted rape. The case arose from the complainant's allegations of multiple sexual assaults by the appellant between 2011 and 2013. The appellant was in a relationship with the complainant's mother during this period. The appellant challenged the conviction, claiming that the verdict was unreasonable or insupportable when considering all the evidence. The primary legal issue the court had to address was whether the jury's verdict was unreasonable or insupportable given the evidence presented.

The court reviewed the evidence presented, particularly focusing on the testimonies of the complainant and a child witness. The complainant's account contained internal inconsistencies, which the appellant argued created a doubt such as referred to in M v The Queen. However, the court held that the differences between the complainant's testimony and that of the child witness, along with the internal inconsistencies, did not render the complainant's evidence unreliable beyond reasonable doubt. The court found that it was open to the jury to be satisfied of the appellant's guilt beyond reasonable doubt, and thus, the verdict was not unreasonable or insupportable.

In conclusion, the court dismissed the appeal and upheld the conviction. The reasoning provided by the court indicated that the evidence, despite its discrepancies and inconsistencies, sufficiently supported the jury's decision. The court found no significant possibility that an innocent person had been convicted. The final order was that the appeal is dismissed.

ORDERS:
The appeal is dismissed.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Leaving aside the formal evidence of the officer who first interviewed K and G, the other evidence is summarised below.K’s evidence K was born in November 2000, and was nearly 12 and a half when first interviewed by police. Her account referred to a number of distinct occasions of sexual assault which subsequently formed the basis of the charges, and as well as other more general occasions. The essential parts of her evidence can be understood in relation to the separate distinct incidents that form the basis of the charges. The defence case as put to K was that none of the alleged acts had occurred and that TAE had never done anything to her of a sexual nature at any time.[7][7]AB 227.K- Wynnum incidents – hands on the penis – count 1 This count related to what happened at the Wynnum house. In her second police interview K said:(a)the first time it happened was one night when she was sitting out on the deck; TAE came out wearing a dark blue towel, which he pulled off, saying “have a look at this”; he “grabbed my hand and put it there”;[8] K did not look at TAE’s penis but described it as “hard”;[9](b)K pulled her hand back and “went inside screaming and I started crying and then he asked me like why I was crying and I said because you made me do that and then he said I'll never make you do it again”;[10] however he did do it again;[11] and(c)other occasions occurred in the bedroom; TAE would take her into the bedroom and make her touch his penis.[12][8]AB 194-195.[9]AB 195, 196.[10]AB 194, 195.[11]AB 196.[12]AB 196. In cross-examination she recounted the incident in much the same terms.[13][13]AB 237.K- the clothesline incident – count 2 In her first police interview K said:(a)one Thursday night TAE asked K if she wanted a drink; she said no, and he forced her to have it, then took her outside and tied her to the clothes line; and “he did things”, and when she said she did not want to do it anymore he took her back inside;[14] the phrase “he did things” was clarified as that TAE “stuck his penis in my vagina”;[15](b)when asked to describe how TAE put his penis into her vagina, K said “…we were both standing up [he] couldn’t really do it properly he like did it really slowly and as he put it in I guess I kicked him away because I didn’t want it to happen”;[16](c)she told him to stop, and that she did not want to ever do it again; then “he started touching me … only a little bit then I … told him I was tired then he untied me…”;[17](d)he then took her into the bedroom and “did more things”;(e)TAE took her clothes off outside near the clothesline before he tied her to the clothesline;[18](f)he used rope and cable ties to tie her hands to the cross bars of the clothesline; he cut the rope and cable ties to release her;[19] (g)at the time K’s grandmother was asleep;[20] and(h)she described in some detail what each of them was wearing,[21] and the house and yard.[22][14]AB 166.[15]AB 172-173.[16]AB 174.[17]AB 173, 175.[18]AB 173, 175.[19]AB 173.[20]AB 174, 175.[21]AB 174.[22]AB 175.

Decision

Reasons for decision

For the reasons expressed above I do not consider that the disparity between the evidence of G and that of K, or the other inconsistencies raised by senior counsel for TAE, are such that the jury should have rejected K’s evidence. In my view, a review of the evidence reveals that it was open to the jury to be satisfied, beyond reasonable doubt, of TAE’s guilt. Put in terms from M v The Queen[167], the evidence does not contain such discrepancies, inadequacies, taint, or otherwise lack probative force, as to lead me to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted.[167](1994) 181 CLR 487.Conclusion For the reasons expressed above I would dismiss the appeal. I propose the following order:1.The appeal is dismissed. PHILIPPIDES JA: I agree with the order proposed for the reasons given by Morrison JA. MULLINS J: I agree with Morrison JA.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v TAE [2016] QCA 133
PARTIES:	R v TAE (appellant)
FILE NO/S:	CA No 158 of 2015 DC No 377 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 3 July 2015
DELIVERED ON:	24 May 2016
DELIVERED AT:	Brisbane
HEARING DATE:	15 April 2016
JUDGES:	Morrison and Philippides JJA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The appeal is dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO ALL THE EVIDENCE – where the appellant was convicted on a number of sexual offences, including indecent treatment of a child under 16, under 12 and in care; indecent treatment of a child under 16, and in care; rape; and attempted rape – where the appellant was in a relationship with the complainant’s mother between 2008 and January 2013 – where the complainant told the police in April 2013 that she had been sexually assaulted by the appellant a number of times between 2011 and 2013 – where a child witness, a friend of the complainant’s, gave evidence that the complainant told him about the sexual assaults – where the evidence of the complainant’s friend was significantly different to that of the complainant – where the appellant alleges that these are irreconcilable differences, and thus the complainant’s evidence cannot be believed beyond reasonable doubt – where the complainant’s evidence contained internal inconsistencies – where the appellant alleges that these inconsistencies create a doubt such as is referred to in M v The Queen – whether the verdict is unreasonable or insupportable having regard to all the evidence M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50, cited R v PAH[2008] QCA 265, cited R v Thaiday[2009] QCA 27, considered SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited
COUNSEL:	S C Holt QC, with B Dighton, for the appellant M Cowen QC for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent