R v TAN

Case [2022] QCA 193

SUPREME COURT OF QUEENSLAND

CITATION:

R v TAN [2022] QCA 193

PARTIES:

R
v
TAN
(appellant)

FILE NO/S:

CA No 232 of 2021
DC No 2767 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 6 September 2021 (Farr SC DCJ)

DELIVERED ON:

7 October 2022

DELIVERED AT:

Brisbane

HEARING DATE:

20 July 2022

JUDGES:

Morrison and Dalton JJA and Kelly J

ORDER:

Appeal dismissed.

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, each being a domestic violence offence – where the appellant appeals those convictions on the basis the verdicts are unsafe and unsatisfactory – whether prejudicial evidence was led before the jury and a mistrial should have been declared – where a forensic paediatric specialist gave evidence at the trial – whether the medical evidence did not support a conclusion that the appellant was guilty – whether having regard to the evidence the appeal should be allowed or dismissed

Dansie v The Queen (2022) 96 ALJR 728; (2022) 403 ALR 221; [2022] HCA 25, followed
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, cited
R v Dent (2002) 132 A Crim R 151; [2002] QCA 247, cited
R v Miller (2021) 8 QR 221; [2021] QCA 126, followed
R v TAN[2020] QCA 64, cited

COUNSEL:

G T Sara (sol) for the appellant (pro bono)
G J Cummings for the respondent

SOLICITORS:

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

  1. MORRISON JA:  On 6 September 2021 the appellant was convicted of two counts of rape, each being a domestic violence offence.  He appeals those convictions on three grounds:

    (a)the verdicts are unsafe and unsatisfactory;

    (b)prejudicial evidence was led before the jury and a mistrial should have been declared; and

    (c)the medical evidence did not support a conclusion that the appellant was guilty.

    Legal principles

  2. The principles to apply when a verdict is challenged on the basis that it is unreasonable are well known.  They were recently restated by the High Court in Dansie v The Queen.[1]  The Court reaffirmed the relevant task as being that laid down in M v The Queen:[2]

    “[8]     That understanding of the function to be performed by a court of criminal appeal in determining an appeal on the unreasonable verdict ground of a common form criminal appeal statute was settled by this Court in M. The reasoning in the joint judgment in that case establishes that "the question which the court must ask itself" when performing that function is “whether it thinks that upon the…

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Details
AGLC
R v TAN [2022] QCA 193
Case
[2022] QCA 193
Decision Date

CaseChat Overview and Summary

In the matter of R v TAN, the appellant was convicted of two counts of rape, each being a domestic violence offence. The appellant has appealed against those convictions, contending that the verdicts were unsafe and unsatisfactory. The court was required to determine whether the verdicts were unreasonable or insupportable having regard to the evidence presented. The central issue was whether the jury had a significant possibility of convicting an innocent person, considering the weaknesses in the prosecution's evidence.

The court considered the evidence provided by the complainant, a seven-year-old child, who detailed incidents of sexual abuse by the appellant. The court acknowledged the difficulties in assessing the credibility of a child witness but concluded that the child's testimony, though fragmented and inconsistent, was corroborated by other evidence, including medical findings. The court held that the child's descriptions of the abuse and the medical evidence supported the jury's verdict. The court emphasised that the identification of weaknesses in the prosecution's evidence alone was insufficient to warrant an appeal; the appellant needed to demonstrate a significant possibility of wrongful conviction.

Ultimately, the court found that the evidence was sufficient to support the jury's verdict. The court dismissed the appeal, finding that the verdicts were not unreasonable or insupportable. The reasoning and outcome were based on the totality of the evidence, including the child's testimony and corroborative medical evidence. The court held that there was no miscarriage of justice that would warrant overturning the jury's verdicts.

ORDERS:
Appeal dismissed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In R v Miller[4] this Court said:“[18] An appellant who contends that the verdict of the jury was unreasonable or that it was unsupported by the evidence must identify the weaknesses in the evidence and must then also demonstrate that these weaknesses reduced the probative value of the evidence in such a way that the appellate court ought 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. The mere identification of weaknesses in the prosecution case is not enough to sustain the ground. As Brennan J said in M v The Queen, and as criminal practitioners and trial judges know very well, it is a sad but salutary experience of counsel for the defence that the prosecution’s “weak point” is often brushed aside dismissively by a jury satisfied of the honesty of the prosecution witness.”[4](2021) 8 QR 221; [2021] QCA 126 at [18]; citation omitted.Review of the evidence The complainant (whom I will call COM) was interviewed by police on 30 June 2017. She was then about seven years old. The following matters emerged from that interview:(a)COM said she was there to talk about “somebody touching me” and that the person “was touching me and I told him to stop, but he didn’t listen”;[5][5]AB 477, lines 34-46.(b)COM said the person “put his rude part in my rude part”;[6][6]AB 477, line 54.(c)COM said she started crying and her grandmother[7] asked if she was alright; AGM did this twice;[8][7]That being the appellant’s mother, whom I shall call AGM.[8]AB 478, lines 3-16.(d)she identified the person as her father, the appellant;[9][9]AB 478, line 58.(e)COM said that she complained that it hurt, but he did not listen;[10][10]AB 478, line 50.(f)COM described the house as being AGM’s, in which the appellant lived with AGM; it had two beds,[11] one of which was used by the appellant;[12][11]As will emerge, in context this evidently meant bedrooms.[12]AB 479-480.(g)she was asked to describe the first time something happened and said the appellant had “told me to go in the room, then he came in the room, then he did it”;[13][13]AB 481, line 53.(h)she said the event occurred at night;[14][14]AB 482, line 39.(i)the first time happened when COM and her mother[15] came to pick up the appellant; MUM was still helping AGM and “my dad said lets go …, then he did it”;[16][15]Whom I shall call MUM.[16]AB 482, lines 9-16.(j)COM described AGM’s house as having two bedrooms, side by side, one of which was used by AGM and the other by the appellant; in AGM’s room were two beds and COM and her brother use to sleep in the bed beside AGM;[17][17]AB 484-485.(k)COM said that the appellant told her “if it hurts, tell me”, and to be quiet and not cry; she said “He was sitting on top of me”;[18] COM corrected that description, saying that the appellant was “laying me”, during which he was “touching my [INDISTINCT]”;[19][18]AB 486, lines 8-17.[19]AB 487, lines 3-7.(l)COM then gave a fuller description of what occurred including:(i)the appellant told her to take off all her clothes;(ii)he then started touching her, scratching her, and then he “put his rude part in my rude part”; and(iii)in the morning she was “hurting and I saw blood” and “When I was at the hospital, I saw blood too”;[20] COM said that the offending occurred in the appellant’s room, and that the appellant told her to take her clothes off so she was naked; she then gave another description of what occurred in these terms: “he started touching me and scratching me, then he put his rude part in my rude part, then he went on me, then I didn’t even move and I said ‘can you … get off me now, and I pulled my [INDISTINCT] and he said no;[21](iv)that description was repeated, with COM identifying her “rude part” as being that part of her body used for peeing;[22](v)asked to describe the touching, COM said “touched it with his hands”, “In the middle” and “He did it inside”;[23] she added that “When he put his rude part in my rude part he did it harder …”;[24](vi)when questioned further about what happened, COM repeated that description, saying that she told the appellant to stop and that he did not listen, and then she starting crying; at that point AGM asked if she was alright and the appellant answered saying “yes”;[25](vii)COM said the next morning she went to the toilet where “I pooed and I peed and when I wiped myself I [INDISTINCT] blood”;[26](viii)COM said she did not tell MUM because then the appellant would get angry; she eventually told her on a different day.[27][20]AB 489, line 48 to AB 490, line 13.[21]AB 491, lines 24-28.[22]AB 492.[23]AB 492, lines 40-50.[24]AB 492, line 54.[25]AB 493.[26]AB 496, line 25-27.[27]AB 496-497.

Decision

Reasons for decision

In the circumstances, to direct the jury that it had to be proven that the offending to have occurred between the dates in the indictment would have been to undermine the defence case and be unfair to the prosecution. No such a direction was warranted, and it has not been demonstrated that there was any miscarriage of justice resulting from such a direction not having been given.Conclusion For the reasons which I have expressed above, the appeal lacks merit and should be dismissed. I propose the following order: Appeal dismissed. DALTON JA: I agree with the order proposed by Morrison JA, and with his reasons. KELLY J: I agree with the reasons of Morrison JA and with the order proposed by his Honour.

Ratio Decidendi

Legal Principle Established

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