R v TAQ

Case [2020] QCA 200

SUPREME COURT OF QUEENSLAND

CITATION:

R v TAQ [2020] QCA 200

PARTIES:

R
v
TAQ
(appellant/applicant)

FILE NO/S:

CA No 357 of 2019
DC No 605 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Townsville – Date of Conviction & Sentence: 28 November 2019 (Farr SC DCJ)

DELIVERED ON:

15 September 2020

DELIVERED AT:

Brisbane

HEARING DATE:

20 July 2020

JUDGES:

Holmes CJ and Philippides and Mullins JJA

ORDERS:

1.   Appeal against conviction dismissed.

2.   Grant application for leave to appeal against sentence.

3.   Appeal against sentence allowed.

4.   Fix the date on which the appellant is eligible for parole as 27 November 2022.

5.   In all other respects, confirm the sentences imposed by the trial judge.

CATCHWORDS:

APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – IN GENERAL – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES INVOLVING MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – IMPROPER ADMISSION – where the appellant was found guilty by a jury of one count of rape, nine counts of common assault, one count of assault occasioning bodily harm, and four counts of assault occasioning bodily harm, while armed – where the prosecution led evidence from a witness that the appellant had said that he had raped the complainant and threatened her with violence unless he got sex – where the statement did not make reference to any particular circumstances of rape – where the primary judge concluded that the statement was not reasonably capable of being construed as an admission to the specific rape charged – whether the primary judge erred in admitting the statement into evidence as tendency evidence

APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – JUDGE’S SUMMING UP – CONSIDERATION OF SUMMING UP AS A WHOLE – where the appellant was found guilty by a jury of one count of rape, nine counts of common assault, one count of assault occasioning bodily harm, and four counts of assault occasioning bodily harm, while armed – where the jury was not expressly directed not to reason from the evidence the appellant was violent to his partner that he would be more likely to have committed rape – where the primary judge had directed the jury to consider each count separately – where the primary judge structured the summing up to deal separately with specific directions for the offences of violence from the specific directions for the count of rape – whether there was a failure to direct the jury to avoid impermissible reasoning

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was found guilty by a jury of one count of rape, nine counts of common assault, one count of assault occasioning bodily harm, and four counts of assault occasioning bodily harm, while armed – where the appellant was…

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Details
AGLC
R v Taq [2020] QCA 200
Case
[2020] QCA 200
Decision Date

CaseChat Overview and Summary

The appeal in the case of R v TAQ involved the appellant who was convicted by a jury of one count of rape, nine counts of common assault, one count of assault occasioning bodily harm, and four counts of assault occasioning bodily harm while armed. The appellant contested the conviction on the ground that there was a miscarriage of justice due to the improper admission of evidence and failure to direct the jury to avoid impermissible reasoning. Furthermore, the appellant appealed against his sentence, arguing that it was manifestly excessive, specifically pointing to errors in the calculation of the non-parole period and the cumulative sentencing of certain offences.

The court had to address whether the primary judge erred in admitting the statement made by the appellant to Mr P, which the prosecution argued was an admission to the specific incident of rape charged. The appellant argued that the statement was not reasonably capable of being construed as an admission to the specific incident, and the court referred to R v Caulfield to determine admissibility. Additionally, the court had to consider whether there was a failure to direct the jury to avoid impermissible reasoning, particularly in the context of the jury being left to consider evidence of violence in relation to the rape charge. Finally, the court examined the sentencing decisions, focusing on the calculation of the non-parole period and the cumulative sentencing of certain offences.

The court found that the primary judge did not err in admitting the statement as it was reasonably capable of being construed as an admission. The court concluded that there was no failure to direct the jury to avoid impermissible reasoning, as the summing up was structured to deal separately with specific directions for the offences of violence from the specific directions for the count of rape. Regarding the sentence, the court held that the primary judge erred in the calculation of the non-parole period by not taking into account the non-declarable pre-sentence custody. Furthermore, the court found that the sentences for counts 8, 9, 11, 18 and 24 should be ordered to be served concurrently with the sentence for count 15. Consequently, the appeal against conviction was dismissed, leave to appeal against the sentence was granted, and the appeal against the sentence was allowed with modifications to the non-parole period and the ordering of sentences.

The final orders were that the appeal against conviction be dismissed, leave to appeal against the sentence be granted, the appeal against sentence be allowed with the non-parole period fixed to make the appellant eligible for parole on 27 November 2022, and in all other respects, the sentences imposed by the trial judge be confirmed.

Orders

Orders of the court

1. Appeal against conviction dismissed.

2. Grant application for leave to appeal against sentence.

3. Appeal against sentence allowed.

4. Fix the date on which the appellant is eligible for parole as 27 November 2022.

5. In all other respects, confirm the sentences imposed by the trial judge.

Background

Background to the litigation

The appeal against conviction is confined to count 15. The grounds of the appeal are that a miscarriage of justice was occasioned by the wrongful admission of the evidence of Mr P and the failure to direct the jury to avoid impermissible reasoning. The appellant applies for leave to appeal against his sentence on the ground that it is manifestly excessive. There are two aspects relied on by the appellant. The first is the learned trial judge erred in not taking into account time not able to be declared in determining the non-parole period and, second, it was an error for the sentences for counts 8, 9, 11, 18 and 24 to be ordered to be served cumulatively on the sentence for count 15. The appellant seeks that the sentences for counts 8, 9, 11, 18 and 24 be ordered to be served concurrently with the sentence for count 15 and for the date that the appellant is eligible for parole to be fixed at 27 November 2021 which would be after serving two years from the date of sentence, in addition to the non-declarable pre-sentence custody.Summary of the facts The complainant was the appellant’s former de facto partner. They met in October 2005 and commenced living together in early 2006. They moved to a different town in October 2006. There were four children in the relationship born between 2007 and 2011. The complainant described the appellant as charming in the early stages of their relationship, but he commenced showing violence after an argument in May 2006 and she described an increasingly violent and controlling relationship during which numerous charged and uncharged assaults occurred. She was able to identify the date on which counts 15 and 16 occurred as 8 October 2011, as it was associated with a significant event for the appellant. He announced on that evening that “tonight was the night” he would “do anal to [her]”, but she did not want to and that is what she told him. The appellant had previously requested anal intercourse from the complainant, but the complainant had managed to fob him off on those occasions. During the evening of 8 October 2011, the appellant had been drinking at home with a couple of friends. The friends were still there, when the complainant went into the appellant’s bedroom with him. He said to her “If you love me, darling, you’ll do it. If you don’t do it, I am going to turn you over and rape you”. He told her to lower her bottom onto his penis. The complainant started to, but it hurt. He told her to stop, she sighed with relief, but he grabbed her hands “and he went … to all the way up [her] bum and it was the worst pain ever” and the complainant described how he “pumped” repeatedly. His penis was covered in faeces and blood, but he then demanded oral sex and told her, if she did not do it, he was going to turn her over and rape her again. When she went to give him oral sex, he hit her in the head (which was the assault that was the subject of count 16). The complainant confirmed in cross-examination that when the appellant penetrated her anus, she screamed loudly, as she was in quite some pain.

Evidence

Evidence Before The Court

The appellant did not give or call evidence. The appellant’s case was that he did not commit any of the assaults or the rape charged on the indictment and that the complainant’s evidence could not be accepted, having regard to inconsistencies, improbabilities and deficiencies in her memory.Whether Mr P’s evidence of the conversation with the appellant should have been admitted The prosecutor in her opening had referred to the evidence that would be given by Mr P, stating that he would tell the jury of what he saw of the complainant’s injuries, the language that the appellant would use to talk to the complainant and the damage to the house. The prosecutor opened the conversation that Mr P had with the appellant after the complainant had left him in these terms “he’ll tell you of that conversation and that the [appellant] admitted to him some pretty vile things, in his own words.” The prosecutor also opened that the jury would hear from Mr P’s two cousins and what they recalled of that conversation as well. The appellant’s counsel at trial did not object to the evidence given by Mr P. The issue at the trial in respect of count 15 was whether the act the subject of that count occurred. Consistent with that approach, consent was not an issue raised by the appellant. The prosecutor at the trial took the position that the statement that Mr P said the appellant made to him in December 2012 that he had raped the complainant could amount to an admission in relation to the incident that was the subject of count 15. The trial judge was doubtful that the jury could infer that was an admission to that specific incident. The prosecutor did not press for a direction that it could amount to such an admission. The prosecutor conceded in submissions before the trial judge that the complainant did not give evidence of being raped on other occasions, as the only occasion of rape she referred to in her evidence was the incident the subject of count 15. Although not a contention that was pursued on this appeal, the court invited submissions from the parties on whether the evidence of the statement made by the appellant to Mr P about having raped the complainant could have been left to the jury as evidence of an admission to count 15. Both parties’ further submissions referred to R v Caulfield [2012] QCA 204 which concerned the admissibility of apologies made by Mr Caulfield to the complainant’s mother in a telephone conversation on day after the assaults occurred. The complainant’s mother’s evidence was that Mr Caulfield kept saying “I’m sorry, I’m sorry” over and over. It was argued that the statements were not admissible as they were not “capable of being found to be an unambiguous and unequivocal apology for an admission to” the subject assaults. Muir JA (with whom de Jersey CJ and White JA agreed) stated the test for admissibility at [18] as:“If words spoken by an accused are reasonably capable of being construed as an admission by the accused, they are admissible.”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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