R v Tau - [2021] QCA 289

SUPREME COURT OF QUEENSLAND

CITATION:

R v TAU [2021] QCA 289

PARTIES:

R
v
TAU
(applicant)

FILE NO:

CA No 20 of 2021
DC No 227 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 14 February 2020 (Farr SC DCJ)

DELIVERED ON:

17 December 2021

DELIVERED AT:

Brisbane

HEARING DATE:

26 August 2021

JUDGES:

Fraser and Mullins JJA and North J

ORDER:

Application for extension of time to appeal against conviction refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the application for extension was filed a little over 10 months out of time – where there was no affidavits to support the submissions made by the applicant as to the reasons for the delay – whether the proposed appeal seemed viable

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF DEFENCE COUNSEL – where the applicant was convicted after trial before a jury of two counts of indecent treatment of a child under 16, under 12, under care – where the applicant made complaints about the lack of cross-examination and objections on the part of his trial counsel – whether there was any inadequacy in the applicant’s legal representation at the trial

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE BY EVIDENCE – APPEAL DISMISSED – where the applicant was convicted after trial before a jury of two counts of indecent treatment of a child under 16, under 12, under care – where there were some inconsistencies between the complainant’s evidence and her preliminary complaints and her pre-recorded evidence – where the inconsistencies were the subject of the cross-examination of the complainant and the applicant’s trial counsel’s address to the jury – where there was some corroborating evidence for the complainant’s evidence – whether there was any feasible prospect for the applicant to challenge the reasonableness of the verdict

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL DISMISSED – where the applicant was convicted after trial before a jury of two counts of indecent treatment of a child under 16, under 12, under care – where there were inconsistencies in the complainant’s evidence particularly about whether the applicant’s fingers penetrated her vagina – where the trial judge refused to give a direction to the jury based on Robinson v The Queen (1997) 197 CLR 162 – whether the trial judge erred in failing to give a Robinson direction

R v Tait [1999] 2 Qd R 667; [1998] QCA 304, cited

COUNSEL:

The applicant appeared on his own behalf
S L Dennis for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: I agree with the reasons for judgment of Mullins JA and the order proposed by her Honour.
MULLINS JA:

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 Tau

Details

AGLC: R v Tau [2021] QCA 289
Case: [2021] QCA 289
Decision Date: 17 December 2021

CaseChat Overview and Summary

The applicant, the respondent, was convicted after a jury trial of two counts of indecent treatment of a child under 16, under 12, under care. The applicant sought to appeal against the conviction, but the application for an extension of time to file the notice of appeal was filed a little over 10 months after the time prescribed by law. The court had to decide whether to grant the extension and whether the appeal had any reasonable prospects of success.

The court had to consider the viability of the appeal and whether the applicant had provided a good explanation for the delay. The court noted that the applicant had not filed any affidavits to support the submissions made about the reasons for the delay. The court considered the inconsistencies in the complainant's evidence and whether the trial counsel's conduct was inadequate. The court also had to consider whether the trial judge erred in not giving a direction to the jury based on Robinson v The Queen (1997) 1997 CLR 162. The court held that the application for an extension of time to appeal against conviction should be refused.

The court held that the application for an extension of time to appeal against conviction should be refused. The court noted that the application for an extension of time to appeal against conviction was filed a little over 10 months out of time and that there was no affidavit material to support the submissions made by the applicant as to the reasons for the delay. The court considered that the proposed appeal did not seem to be viable and that it was not in the interests of justice to grant the extension. The court also held that the trial counsel's conduct was not inadequate and that there was no error in the trial judge's refusal to give a direction to the jury based on Robinson v The Queen (1997) CLR 162.

Application for extension of time to appeal against conviction refused.

Orders

Orders of the court

Application for extension of time to appeal against conviction refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In deciding whether to exercise the discretionary power to extend the time for appealing, the court examines whether there is any good explanation for the delay and considers whether it is in the interests of justice to grant the extension which may involve some assessment of whether the appeal seems to be viable, if it is feasible to make that assessment: R v Tait [1999] 2 Qd R 667, 668. No affidavit material was filed by the applicant in relation to the legal advice obtained about appealing against the convictions or his asserted mental health issues that may have been relevant to explain the delay in filing the notice of appeal. The question of the viability of an appeal is therefore the focus of this application.The evidence The complainant for each count was the applicant’s daughter’s 10 year old friend who lived next door to the applicant’s family. The applicant’s daughter was 13 years old and I will refer to her as “the daughter”. The complainant’s allegation was that both offences were committed on one occasion during a sleepover by the complainant at the applicant’s home on the night of 2 and 3 March 2019. The complainant and the daughter were sleeping on single mattresses next to one another on the floor in the dining room area of the house. The complainant’s s 93A statement was recorded on 3 March 2019. A s 93A statement was obtained from the complainant’s sister on 13 March 2019. The evidence of both of them was pre-recorded on 12 November 2019. The complainant’s s 93A statement included the following. The complainant had brought her unicorn night light and put it between the two mattresses. The complainant had fallen asleep on the night of the sleepover and woke up, because she felt something on her. It was the applicant (as she saw his face) beside her with his fingers in her private parts on the inside of her underwear. She asked him to stop, but he would not stop. It was about midnight, according to the complainant’s watch. (That was the subject of count 1.) The applicant called her an “asshole” and “bitch”. When the applicant left to go to the toilet, he then came back, and laid down next to her and kept doing what he was doing before of putting his fingers down her pants. (The repeat of the same conduct constituted count 2.) The last time he came back, the complainant had got up to pack her stuff and he told her to lay down, but she did not. He said to her “please, just let me do something. I promise that you’re gonna like it”. The complainant was in tears and scared and asked if she could go home and the applicant said “no, you are going to tell your mum and if you do I am going to kill your family and he said he could not go to gaol”. The complainant thought he was gone, and laid down again, but the applicant came back and was running his fingers up her leg tickling it. At the end of what the applicant did to the complainant, his wife saw him laying next to the complainant with his hands underneath the blanket and she pulled him away from the complainant and put him in his room. The applicant’s wife did not say anything to the complainant. The complainant fell asleep.

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 TAU [2021] QCA 289
PARTIES:	R v TAU (applicant)
FILE NO:	CA No 20 of 2021 DC No 227 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Conviction)
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 14 February 2020 (Farr SC DCJ)
DELIVERED ON:	17 December 2021
DELIVERED AT:	Brisbane
HEARING DATE:	26 August 2021
JUDGES:	Fraser and Mullins JJA and North J
ORDER:	Application for extension of time to appeal against conviction refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the application for extension was filed a little over 10 months out of time – where there was no affidavits to support the submissions made by the applicant as to the reasons for the delay – whether the proposed appeal seemed viable CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF DEFENCE COUNSEL – where the applicant was convicted after trial before a jury of two counts of indecent treatment of a child under 16, under 12, under care – where the applicant made complaints about the lack of cross-examination and objections on the part of his trial counsel – whether there was any inadequacy in the applicant’s legal representation at the trial CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE BY EVIDENCE – APPEAL DISMISSED – where the applicant was convicted after trial before a jury of two counts of indecent treatment of a child under 16, under 12, under care – where there were some inconsistencies between the complainant’s evidence and her preliminary complaints and her pre-recorded evidence – where the inconsistencies were the subject of the cross-examination of the complainant and the applicant’s trial counsel’s address to the jury – where there was some corroborating evidence for the complainant’s evidence – whether there was any feasible prospect for the applicant to challenge the reasonableness of the verdict CRIMINAL LAW – APPEAL AND NEW TRIAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL DISMISSED – where the applicant was convicted after trial before a jury of two counts of indecent treatment of a child under 16, under 12, under care – where there were inconsistencies in the complainant’s evidence particularly about whether the applicant’s fingers penetrated her vagina – where the trial judge refused to give a direction to the jury based on Robinson v The Queen (1997) 197 CLR 162 – whether the trial judge erred in failing to give a Robinson direction R v Tait [1999] 2 Qd R 667; [1998] QCA 304, cited
COUNSEL:	The applicant appeared on his own behalf S L Dennis for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent