R v Tav - [2022] QCA 271

SUPREME COURT OF QUEENSLAND

CITATION:

R v TAV [2022] QCA 271

PARTIES:

R
v
TAV
(appellant)

FILE NO/S:

CA No 311 of 2021
DC No 2445 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 29 November 2021 (McDonnell DCJ)

DELIVERED ON:

23 December 2022

DELIVERED AT:

Brisbane

HEARING DATE:

3 June 2022

JUDGES:

Mullins P and McMurdo and Bond JJA

ORDERS:

1.   The application to amend the indictment be granted, and counts 2, 3, 5 and 8 on the indictment be amended by inserting the words “on a date unknown” before the word “between”.

2.   The appeal against the conviction on count 6 on the indictment be allowed, and that conviction be set aside with a verdict of acquittal being substituted for it.

3.   The appeal against conviction be otherwise dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – GENERALLY – where the appellant was convicted of seven sexual offences against a 10 year old complainant – where the offences were aggravated by the circumstances that the complainant had an impairment of the mind and was under the appellant’s care at the relevant time – where the jury returned a verdict of acquittal on one offence but convicted on the others – where the appellant challenged all the convictions on the basis that they were factually inconsistent with the acquittal – whether the jury’s acquittal can be reconciled with an acceptance of the complainant’s testimony in proof of the other accounts – whether the different verdicts constitute an affront to logic and common sense which is unacceptable – whether the verdict was unreasonable or insupportable having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – GENERALLY – where the appellant was convicted of seven sexual offences against a 10 year old complainant – where the offences were aggravated by the circumstances that the complainant had an impairment of the mind and was under the appellant’s care at the relevant time – where the jury returned a verdict of acquittal on one offence but convicted on the others – where the appellant challenged all the convictions on the basis that there were inconsistencies within the complainant’s evidence which together required the jury to acquit on every count – whether, in combination, the inconsistencies within the complainant’s evidence required the jury to be left in doubt about her credibility or reliability – whether it was open to the jury to be satisfied of the appellant’s guilt on each of the counts in question, beyond reasonable doubt – whether the verdict were unreasonable or insupportable having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant was convicted of seven sexual offences against a 10 year…

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 Tav

Details

AGLC: R v Tav [2022] QCA 271
Case: [2022] QCA 271
Decision Date: 23 December 2022

CaseChat Overview and Summary

In the matter of the Regina v Tav, the appellant was convicted of seven sexual offences against a 10-year-old complainant, who had a mental impairment and was under the appellant’s care at the relevant time. The jury acquitted the appellant on one count but convicted him on the others. The appellant challenged the convictions on various grounds, including the inconsistency between the acquittal and the other convictions, and the reliability of the complainant’s evidence.

The court had to determine whether the acquittal on one count rendered the convictions on the other counts unreasonable or insupportable, given the evidence. The court also had to decide whether the inconsistencies in the complainant’s evidence required the jury to be in doubt about her credibility, and whether it was open to the jury to be satisfied of the appellant’s guilt beyond reasonable doubt. Furthermore, the court had to assess whether the admission of an expert witness’s evidence about the complainant’s credibility amounted to a miscarriage of justice.

The court held that the acquittal on one count did not render the convictions on the other counts unreasonable or insupportable, given the evidence. The court found that the inconsistencies in the complainant’s evidence did not require the jury to be in doubt about her credibility, and that it was open to the jury to be satisfied of the appellant’s guilt beyond reasonable doubt. The court also held that the admission of the expert witness’s evidence did not amount to a miscarriage of justice, as the evidence fell within the field of expertise of the witness. The court allowed the appeal against the conviction on count 6 and set aside the conviction with a verdict of acquittal being substituted for it. The court dismissed the appeal against conviction otherwise.

The orders of the court were that the application to amend the indictment be granted, and counts 2, 3, 5, and 8 on the indictment be amended by inserting the words “on a date unknown” before the word “between.” The appeal against the conviction on count 6 on the indictment be allowed, and that conviction be set aside with a verdict of acquittal being substituted for it. The appeal against conviction be otherwise dismissed.

Orders

Orders of the court

1. The application to amend the indictment be granted, and counts 2, 3, 5 and 8 on the indictment be amended by inserting the words “on a date unknown” before the word “between”.

2. The appeal against the conviction on count 6 on the indictment be allowed, and that conviction be set aside with a verdict of acquittal being substituted for it.

3. The appeal against conviction be otherwise dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v TAV [2022] QCA 271
PARTIES:	R v TAV (appellant)
FILE NO/S:	CA No 311 of 2021 DC No 2445 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 29 November 2021 (McDonnell DCJ)
DELIVERED ON:	23 December 2022
DELIVERED AT:	Brisbane
HEARING DATE:	3 June 2022
JUDGES:	Mullins P and McMurdo and Bond JJA
ORDERS:	1. The application to amend the indictment be granted, and counts 2, 3, 5 and 8 on the indictment be amended by inserting the words “on a date unknown” before the word “between”. 2. The appeal against the conviction on count 6 on the indictment be allowed, and that conviction be set aside with a verdict of acquittal being substituted for it. 3. The appeal against conviction be otherwise dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – GENERALLY – where the appellant was convicted of seven sexual offences against a 10 year old complainant – where the offences were aggravated by the circumstances that the complainant had an impairment of the mind and was under the appellant’s care at the relevant time – where the jury returned a verdict of acquittal on one offence but convicted on the others – where the appellant challenged all the convictions on the basis that they were factually inconsistent with the acquittal – whether the jury’s acquittal can be reconciled with an acceptance of the complainant’s testimony in proof of the other accounts – whether the different verdicts constitute an affront to logic and common sense which is unacceptable – whether the verdict was unreasonable or insupportable having regard to the evidence CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – GENERALLY – where the appellant was convicted of seven sexual offences against a 10 year old complainant – where the offences were aggravated by the circumstances that the complainant had an impairment of the mind and was under the appellant’s care at the relevant time – where the jury returned a verdict of acquittal on one offence but convicted on the others – where the appellant challenged all the convictions on the basis that there were inconsistencies within the complainant’s evidence which together required the jury to acquit on every count – whether, in combination, the inconsistencies within the complainant’s evidence required the jury to be left in doubt about her credibility or reliability – whether it was open to the jury to be satisfied of the appellant’s guilt on each of the counts in question, beyond reasonable doubt – whether the verdict were unreasonable or insupportable having regard to the evidence CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant was convicted of seven sexual offences against a 10 year…