R v TAI

Case [2018] QCA 282

SUPREME COURT OF QUEENSLAND

CITATION:

R v TAI [2018] QCA 282

PARTIES:

R
v
TAI
(appellant)

FILE NO/S:

CA No 133 of 2017
DC No 71 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Cairns – Date of Conviction: 25 May 2017 (Smith DCJ)

DELIVERED ON:

19 October 2018

DELIVERED AT:

Brisbane

HEARING DATE:

3 May 2018

JUDGES:

Morrison and Philippides JJA and Bowskill J

ORDER:

The appeal against conviction is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where the appellant was convicted of two counts of indecent treatment of a child under 16 (counts 1 and 3), two counts of rape (counts 2 and 4) and two counts of indecent treatment of a child under 16 under care (counts 7 and 8) – where the appellant was acquitted of one count of indecent treatment of a child under 16 (count 5) and a nolle prosequi was entered on another count of indecent treatment of a child under 16 (count 6) – where counts 1 to 4 were alleged to have occurred on one occasion, counts 5 and 6 on another occasion and counts 7 and 8 on a further occasion – where count 5 was initially particularised as the appellant touching the complainant’s breasts and later amended to the appellant kissing the complainant – whether the verdicts of guilty were unsafe and unsatisfactory on the basis of inconsistency with the acquittal on count 5

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – TEST TO BE APPLIED – where the complainant gave two video recorded statements and one handwritten document pursuant to s 93A of the Evidence Act 1977 (Qld) and participated in a pre-recorded hearing pursuant to s 21AK of the Evidence Act 1977 (Qld) – where the complainant made a preliminary complaint in relation to counts 1 to 4 and counts 5 and 6 to one of her cousins who gave evidence at trial – where the complainant made a preliminary complaint in relation to counts 5 and 6 to another cousin who participated in a s 93A video recorded interview – where the complainant made a preliminary complaint in relation to counts 7 and 8 to her boyfriend, at the time, who gave evidence at trial and who allegedly, after the appellant’s conviction, told that he was forced to give evidence for a family conspiracy – where the appellant denied having sexual contact with the complainant – whether in all the circumstances the verdicts of guilty were unreasonable and cannot be supported by the evidence

Criminal Code (Qld), s 668E
Evidence Act 1977 (Qld), s 21AK, s 93A

Gately v The Queen (2007) 232 CLR 208; [2007] HCA 55, cited
GAX v The Queen (2017) 91 ALJR 698; [2017] HCA 25, applied
Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56, applied
Longman v…

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R v TAI [2018] QCA 282
Case
[2018] QCA 282
Decision Date

CaseChat Overview and Summary

The appellant appealed against his conviction on several counts of indecent treatment of a child under 16 and rape, arguing that the verdicts were inconsistent with his acquittal on another count and unreasonable given the evidence. The case involved a complainant who made allegations against the appellant, who denied all charges. The complainant provided multiple statements and participated in a pre-recorded hearing. The court had to determine if the guilty verdicts were inconsistent with the acquittal on count 5 and if they were unreasonable in light of the evidence.

The court examined the nature of the inconsistency between the verdicts and whether it was possible for a reasonable jury to reconcile them. It noted that appellate courts are generally reluctant to find inconsistency unless it is clear that the verdicts could not logically stand together. The court considered whether there was a reasonable way to explain why the jury acquitted on count 5 while convicting on others, or if the inconsistency suggested a failure in the jury's duty. It applied the principles from M v The Queen and other precedents to evaluate if the inconsistency was such that it necessitated appellate intervention to prevent injustice.

After reviewing the evidence and the complainant’s statements, the court concluded that there was a reasonable basis for the jury’s verdicts, and the inconsistency did not rise to a level that warranted setting aside the convictions. The evidence supported the guilty verdicts, and the jury’s decision on count 5 did not necessarily negate the others. The appeal was therefore dismissed, and the convictions were upheld.

The final orders of the court were that the appeal against conviction was dismissed, and the convictions on counts 1 to 4, 7, and 8 were maintained.

Orders

Orders of the court

The appeal against conviction is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellant appeals his convictions on the grounds that:1.The verdicts of guilty on counts 1 to 4, 7 and 8 are inconsistent with the verdict of not guilty on count 5.2.The verdicts of guilty are unreasonable or cannot be supported having regard to the evidence.The evidenceThe complainant’s evidence The complainant was born on 26 March 1999[1] and is the daughter of the appellant’s first cousin,[2] and she was also a member of the appellant’s congregation of the Cook Islands Christian Church. The complainant gave two s 93A Evidence Act 1977 (Qld) (the Act) video recorded statements and one s 93A hand written document, which recounted offending over the three distinct occasions the subject of the eight count indictment.[1]AB at 296.31; 181.[2]AB at 82.36. During the trial, the video recordings of the complainant were played to the jury.[3] The handwritten s 93A statement was read to the jury and admitted as an exhibit and provided to the jury during the course of the trial and deliberations by consent.[4] No application was made under s 99 of the Act for the statement to be withdrawn from the jury room during deliberations. The trial judge did not give the jury a warning against the risk of giving the handwritten statement disproportionate weight.[5][3]AB at 49.24-50.20; 58.3-42.[4]AB at 60.41-61.21; 64.45-47.[5]Gately v The Queen (2007) 232 CLR 208 at 232-234; R v HBJ [2014] QCA 2 at [30]-[33]; R v Smith [2014] QCA 315 at [25]-[35]; and R v Taylor [2017] QCA 169 at [15]-[31]. The pre-recorded s 21AK hearing was played to the jury.[6] The complainant, in cross examination at the hearing, disagreed when it was suggested to her that the three incidents did not occur as she described.[7][6]AB at 59.29-60.22.[7]AB at 304.20-41.Counts 1 to 4 (the first occasion) Counts 1 to 4 were particularised as follows:·Count 1 – the appellant touched the complainant’s breasts;·Count 2 – the appellant penetrated the complainant’s mouth with his penis;·Count 3 – the appellant touched the complainant’s breasts; and·Count 4 – the appellant penetrated the complainant’s vagina with his penis. Counts 1 to 4 were alleged to have occurred over a weekend in 2011, during the school term. The complainant gave evidence that she was walking through the back yard of the appellant’s house at Y at about 3.00 or 4.00 pm to access a shortcut to get to her cousin T’s house.[8] The appellant pulled the complainant inside the house, into the bedroom belonging to the appellant’s son, he then pushed her onto the bed and closed the door.[9] The appellant pulled her pants down, lifted her shirt up and started touching the complainant by squeezing her breasts (count 1).[10] The appellant pulled his pants down and forced the complainant to perform oral sex on him (count 2).[11] The appellant then pulled the complainant’s legs apart and had sexual intercourse with her which was painful (count 4).[12] The complainant said she kicked the appellant off.[13] The complainant then started crying, clothed herself and ran outside.[14] The appellant followed her but had to stop because his daughter started crying.[8]AB at 209.37-41; 210.53-211.25; 213.10-14; 246.28.[9]AB at 209.47-50; 214.1.[10]AB at 209.50-51; 216.7-35.[11]AB at 209.54-55.[12]AB at 210.10-16; 222.30-40; 259.35-39.[13]AB at 224.6-8.[14]AB at 210.20-26.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The first ground of appeal raises the issue of whether the verdicts of guilty on the counts on which he was convicted were unsafe and unsatisfactory on the basis of inconsistency with the acquittal on count 5. The question for determination, bearing in mind the test in M v The Queen,[83] is whether, given the jury’s verdict of not guilty on count 5, it was open to the jury, on the whole of the evidence, to be satisfied beyond reasonable doubt of the guilt of the appellant on the counts on which he was convicted.[84] The relevant principles were summarised in R v GAW,[85] by reference to MacKenzie v The Queen,[86] as follows:[83](1994) 181 CLR 487 at 493-494.[84]See Jones v The Queen (1997) 191 CLR 439 at 450-452 and at 455 (per Gaudron, McHugh and Gummow JJ).[85][2015] QCA 166 at [19]-[23]; applied in R v Latsamyvong [2017] QCA 174 at [152]; R v McLucas [2017] QCA 262 at [65]; R v MCQ [2018] QCA 160 at [82]; R v MCT [2018] QCA 189 at [107].[86](1996) 190 CLR 348.“The principles concerning inconsistent verdicts are well-established.[87] Where alleged inconsistency arises in the jury verdicts upon different counts affecting an accused, the test is one of “logic and reasonableness”; that is, whether the party alleging inconsistency has satisfied the court that the verdicts cannot stand together because “no reasonable jury, who had applied their mind properly to the facts in the case could have arrived” at them.[88]However, respect for the jury’s function results in a reluctance in appellate courts accepting a submission that verdicts are inconsistent in the relevant sense, so that:[89]‘... if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury.’In that regard, “the view may be taken that the jury simply followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt”.[90] Alternatively, the appellate court may conclude that the jury took a merciful view of the facts on one count; a function which has always been open to a jury.[91]It is only where the inconsistency rises to the point that the appellate court considers intervention is necessary to prevent possible injustice that the relevant conviction will be set aside.[92] While it is impossible to state hard and fast rules, the following provide examples of relevant inconsistency;[93] where the different verdicts returned by the jury are an affront to logic and common sense which is unacceptable, and strongly suggests a compromise in the performance of the jury’s duty, or which suggests confusion in the minds of the jury, or a misunderstanding of their function, or uncertainty about the legal difference between specific offences, or a lack of clarity in the instruction on the applicable law.In R v CX,[94] Jerrard JA, referring to Osland v The Queen,[95] stated:‘Verdicts of guilty and of acquittal will show the required inconsistency where a verdict of acquittal necessarily demonstrates that the jury did not accept evidence which they had to accept before they could bring in the verdict or verdicts of guilty which they did; or when it follows that when acquitting on a particular count, the jury must have accepted evidence that required them to acquit on a count or counts on which they convicted the defendant.’”[87]See MacKenzie v The Queen (1996) 190 CLR 348 at 366-368 (per Gaudron, Gummow and Kirby JJ).[88]MacKenzie v The Queen (1996) 190 CLR 348 at 366 (per Gaudron, Gummow and Kirby JJ) quoting R v Stone (unreported, 13 December 1954) per Devlin J.[89]MacKenzie v The Queen (1996) 190 CLR 348 at 367 (per Gaudron, Gummow and Kirby JJ) (citations omitted).[90]MacKenzie v The Queen (1996) 190 CLR 348 at 367 (per Gaudron, Gummow and Kirby JJ) (citations omitted).[91]MacKenzie v The Queen (1996) 190 CLR 348 at 367 per Gaudron, Gummow and Kirby JJ.[92]MacKenzie v The Queen (1996) 190 CLR 348 at 368 per Gaudron, Gummow and Kirby JJ.[93]MacKenzie v The Queen (1996) 190 CLR 348 at 368 per Gaudron, Gummow and Kirby JJ.[94][2006] QCA 409 at [33].[95](1998) 197 CLR 316 at 356-357 per McHugh J.Consideration