R v Tan - [2020] QCA 64

SUPREME COURT OF QUEENSLAND

CITATION:

R v TAN [2020] QCA 64

PARTIES:

R
v
TAN
(appellant)

FILE NO/S:

CA No 94 of 2019
DC No 2767 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 10 May 2018 (Dick SC DCJ)

DELIVERED ON:

Date of Orders: 3 April 2020
Date of Publication of Reasons: 7 April 2020

DELIVERED AT:

Brisbane

HEARING DATE:

16 March 2020

JUDGES:

Fraser and McMurdo JJA and Callaghan J

ORDERS:

Orders delivered: 3 April 2020

1.   The appeal is allowed.

2.   A new trial is ordered.

3.   The appellant’s application to adduce evidence in the appeal is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of two counts of rape of his seven year old daughter – where the appellant submitted that if there had been digital and penile penetration as the complainant said in evidence there should be some evidence of minor and major injuries – where there was a doctor’s report in evidence which stated that an examination of the complainant “neither confirms, nor refutes the allegations as reported to police” – where the appellant submitted that the complainant’s mother coached her in the evidence she should give – where the appellant submitted that it was not likely the alleged offending occurred in a small house while the complainant’s grandmother was present in the house – whether it was reasonably open to the jury to be satisfied beyond reasonable doubt upon the whole of the evidence that the appellant was guilty of the offences

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant’s first language was Kirundi – where an order was made in the District Court appointing an interpreter to interpret the English language proceedings at the trial into Kirundi for the appellant – where the appellant was said by his counsel at trial to be “reasonably competent in English” – where the appellant indicated he could understand “little bit” or “half-half” of what was being said – where the interpreter was not present in the courtroom on the second day of the trial – whether the absence of the interpreter occasioned a miscarriage of justice – whether the verdicts were therefore unsafe or unsatisfactory and should be quashed

Ebatarinja v Deland (1998) 194 CLR 444; [1998] HCA 62, applied
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, distinguished
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited
R v Lee Kun [1916] 1 KB 337, cited

COUNSEL:

G T Sara (sol) for the appellant (pro bono)
D Kovac for the respondent

SOLICITORS:

Guy Sara & Associates for the appellant (pro bono)
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: The…

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 Tan

Details

AGLC: R v Tan [2020] QCA 64
Case: [2020] QCA 64
Decision Date: 7 April 2020

CaseChat Overview and Summary

The appellant appealed against his conviction for two counts of rape of his seven year old daughter. The jury had found the appellant guilty beyond reasonable doubt of the two offences. The appellant submitted that the jury's verdict was unreasonable or not supported by the evidence, as there was no evidence of physical injuries despite the complainant's allegations of digital and penile penetration. The appellant also argued that the complainant's mother had coached her in the evidence she should give, and that it was unlikely that the alleged offending had occurred in the small house while the complainant's grandmother was present. The appellant further submitted that the absence of an interpreter for part of the trial caused a miscarriage of justice. The appellant's first language was Kirundi, and an interpreter had been appointed to assist him. However, the interpreter was not present on the second day of the trial. The appellant had indicated that he could understand "little bit" or "half-half" of what was being said in court.

The court considered whether it was reasonably open to the jury to be satisfied beyond reasonable doubt upon the whole of the evidence that the appellant was guilty of the offences, and whether the absence of the interpreter occasioned a miscarriage of justice. The court noted that there was no evidence of physical injuries, but this did not necessarily mean that the offences had not occurred. The doctor's report in evidence neither confirmed nor refuted the allegations. The court found that the complainant's evidence was clear, consistent and compelling. The court also found that the absence of the interpreter for part of the trial did not occasion a miscarriage of justice, as the appellant had indicated that he could understand some English and the interpreter was present for most of the trial. However, the court found that the absence of the interpreter on the second day of the trial was a significant irregularity that may have affected the fairness of the trial.

The appeal was allowed and a new trial was ordered. The court found that the absence of the interpreter on the second day of the trial was a significant irregularity that may have affected the fairness of the trial. The appellant's application to adduce evidence in the appeal was refused. The court noted that the appellant had not provided any new evidence to support his submission that the verdicts were unreasonable or not supported by the evidence. The court also noted that the appellant had not provided any evidence to support his submission that the complainant's mother had coached her in the evidence she should give. The court found that the appellant's submissions did not amount to a miscarriage of justice or other irregularity that should warrant a new trial. However, the court found that the absence of the interpreter on the second day of the trial was a significant irregularity that may have affected the fairness of the trial, and therefore a new trial was ordered.

Orders

Orders of the court

Orders delivered: 3 April 2020

1. The appeal is allowed.

2. A new trial is ordered.

3. The appellant’s application to adduce evidence in the appeal is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v TAN [2020] QCA 64
PARTIES:	R v TAN (appellant)
FILE NO/S:	CA No 94 of 2019 DC No 2767 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 10 May 2018 (Dick SC DCJ)
DELIVERED ON:	Date of Orders: 3 April 2020 Date of Publication of Reasons: 7 April 2020
DELIVERED AT:	Brisbane
HEARING DATE:	16 March 2020
JUDGES:	Fraser and McMurdo JJA and Callaghan J
ORDERS:	Orders delivered: 3 April 2020 1. The appeal is allowed. 2. A new trial is ordered. 3. The appellant’s application to adduce evidence in the appeal is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of two counts of rape of his seven year old daughter – where the appellant submitted that if there had been digital and penile penetration as the complainant said in evidence there should be some evidence of minor and major injuries – where there was a doctor’s report in evidence which stated that an examination of the complainant “neither confirms, nor refutes the allegations as reported to police” – where the appellant submitted that the complainant’s mother coached her in the evidence she should give – where the appellant submitted that it was not likely the alleged offending occurred in a small house while the complainant’s grandmother was present in the house – whether it was reasonably open to the jury to be satisfied beyond reasonable doubt upon the whole of the evidence that the appellant was guilty of the offences CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant’s first language was Kirundi – where an order was made in the District Court appointing an interpreter to interpret the English language proceedings at the trial into Kirundi for the appellant – where the appellant was said by his counsel at trial to be “reasonably competent in English” – where the appellant indicated he could understand “little bit” or “half-half” of what was being said – where the interpreter was not present in the courtroom on the second day of the trial – whether the absence of the interpreter occasioned a miscarriage of justice – whether the verdicts were therefore unsafe or unsatisfactory and should be quashed Ebatarinja v Deland (1998) 194 CLR 444; [1998] HCA 62, applied M v The Queen (1994) 181 CLR 487; [1994] HCA 63, distinguished MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited R v Lee Kun [1916] 1 KB 337, cited
COUNSEL:	G T Sara (sol) for the appellant (pro bono) D Kovac for the respondent
SOLICITORS:	Guy Sara & Associates for the appellant (pro bono) Director of Public Prosecutions (Queensland) for the respondent