R v Tay

Case [2023] QCA 5

SUPREME COURT OF QUEENSLAND

CITATION:

R v TAY [2023] QCA 5

PARTIES:

R
v
TAY
(appellant)

FILE NO/S:

CA No 270 of 2021
DC No 86 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Bundaberg – Date of Conviction: 28 September 2021 (Allen KC DCJ)

DELIVERED ON:

3 February 2023

DELIVERED AT:

Brisbane

HEARING DATE:

7 September 2022

JUDGES:

Mullins P and Morrison JA and Williams J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE OF JUSTICE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant was convicted on 10 counts of sexual offences against two complainants – where the appellant submitted that there was a miscarriage of justice because the appellant was denied a fair trial by reason of the Crown’s failure to disclose the Victim Impact Statement of the complainant, SIS, before her evidence – where the trial ran over seven days to 28 September 2021 – where the Victim Impact Statement was dated 16 September and was disclosed after closing addresses and during the summing up – where the prosecutor received it on 27 September and provided it to defence counsel that day – where defence counsel applied for a mistrial and discharge of the jury on the basis that the statement bolstered an argument that there was collusion, an issue central to the defence case – where the application was refused – whether there has been a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – TEST TO BE APPLIED – APPEAL DISMISSED – where the legal principles applicable with the ground that the verdict was unreasonable are well known, and were recently restated in Dansie v The Queen (2022) 96 ALJR 728, which reaffirmed the approach set out in M v The Queen (1994) 181 CLR 487 – where the suggested weaknesses in the evidence have not been demonstrated to have reduced the probative value of the evidence in such a way that this Court ought to conclude, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted

Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25, cited
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, cited
R v Miller (2021) 8 QR 221; [2021] QCA 126, cited

COUNSEL:

A I O’Brien and I J MacNicol for the appellant (pro bono)
D Nardone for the respondent

SOLICITORS:

No appearance for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. MULLINS P:  I agree with Morrison JA.

  2. MORRISON JA:  The appellant was convicted on 10 counts of sexual offences against two complainants.[1]  The offences were:

    [1]In order to distinguish between them I…

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AGLC
R v Tay [2023] QCA 5
Case
[2023] QCA 5
Decision Date

CaseChat Overview and Summary

In the case of R v Tay, the appellant appealed against his conviction on 10 counts of sexual offences against two complainants, COM and SIS. The central issue in the appeal was whether there was a miscarriage of justice due to the Crown's failure to disclose SIS's Victim Impact Statement before her evidence. The trial, which ran over seven days until 28 September 2021, included oral evidence from COM, SIS, their brother, their biological father, and his ex-partner, as well as formal admissions. The Victim Impact Statement, dated 16 September, was disclosed to defence counsel on 27 September, after closing addresses and during the summing up. The defence counsel argued that this disclosure constituted a miscarriage of justice and applied for a mistrial and discharge of the jury, which was refused.

The court had to determine if the suggested weaknesses in the evidence were significant enough to conclude that there was a significant possibility that an innocent person had been convicted. The court applied the principles established in Dansie v The Queen, reaffirming the approach in M v The Queen, to assess whether the verdict was unreasonable. The court found that the evidence provided was sufficient to support the conviction, and the non-disclosure of the Victim Impact Statement did not undermine the probative value of the evidence to the extent that it would suggest an innocent person had been convicted.

The court concluded that all grounds of appeal had failed, and the appeal should be dismissed. The reasoning was that the evidence provided was robust and the non-disclosure of the Victim Impact Statement did not create a significant possibility that an innocent person had been convicted. The court ordered that the appeal be dismissed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Oral evidence at the trial came from COM and SIS, their brother, their biological father and his ex-partner. Formal admissions were also made.COM’s evidence COM gave evidence that the appellant was her stepfather and also the father of her three children, born in 2004, 2006 and 2011. She and the appellant commenced a romantic relationship when she was 16 and she gave birth to her first child when she was 18. That relationship ended in 2012.[7] COM’s mother was married to the appellant, and died on 1 January 1999. The three siblings (COM, SIS and their brother) moved in with COM’s mother to live at the appellant’s farm when COM was about eight or nine years old. At the farm COM and SIS shared a bedroom until COM was about 13.[8][7]AB 137.[8]AB 138-139. COM said the sexual offending against her commenced when she was 10 or 11.[9] The indecent dealing counts[10] involved the appellant touching COM on the breasts, putting her hand on his penis, using her hand to masturbate him to ejaculation, and rubbing her vagina against his penis to the point of ejaculation.[9]AB 140.[10]Counts 4, 5, 8 and 10. Her first recall of a specific event involved the appellant touching her breasts whilst on the appellant’s bed. He then put her hand on his penis and moved it up and down until he eventually ejaculated.[11] The touching of her breasts was over the top of clothing[12] but the touching of his penis was inside the appellant’s pants.[13][11]AB 140 lines 22-35.[12]AB 140 line 38.[13]AB 140 lines 40-42. The second occasion she recalled was when she was 10 to 12 years old. They were all lying in their parents’ bed, with COM at the edge on one side, then the appellant, then her brother, followed by her mother and SIS on the far side. The appellant put COM’s hand “into his pants, through the buttonholes … onto his penis which was soft”.[14] COM moved her hand up and down until his penis went hard. She did that for a while and then the appellant told them to go to bed.[15] He did not ejaculate on that occasion.[14]AB 141 lines 14-24.[15]AB 141 lines 26-28. The third occasion she recalled was an incident at the dam on the property.[16] It was during the Christmas holidays and the weather was hot, and all of the children as well as the appellant were in the dam. The appellant had his hand around COM’s body, holding her towards him. Her legs were wrapped around his waist and “he was moving me up and down and I could feel his penis getting hard”. At the time her mother was back at the house.[16]AB 141 line 40 to AB 143 line 24. The fourth occasion she could recall was when they had some time off while doing chipping.[17] COM and the appellant were lying on a mattress in the lounge room watching television. He started to touch her breasts and had his hands down her shorts. COM said that she did not want to do anymore chipping. She said at that stage they had an established routine that “if I gave him a rub, that I could get out of doing the chipping or whatever it was I wanted”. She explained that “having a rub” involved “getting naked and rubbing my vagina on his penis until he ejaculated”. The rubbing was skin on skin. On this occasion COM said they both got undressed and she climbed on top of the appellant, and “rubbed my vagina along his penis until he ejaculated”. She said she saw “white stuff coming out of his penis”.[17]AB 142 line 28 to AB 143 line 17.

Decision

Reasons for decision

This ground fails.Conclusion All grounds of appeal have failed, with the consequence that the appeal should be dismissed. I propose the following order:1.Appeal dismissed. WILLIAMS J: I agree with the reasons and order of Morrison JA.

Ratio Decidendi

Legal Principle Established

It was submitted that the court could not ignore even a relatively slim possibility that the defence had been forensically disadvantaged by the non-disclosure of the statement. It was enough that the opportunity which the defence was denied could have made a difference to the verdict.[98][98]Relying on R v HAU [2009] QCA 165 at [40], referring to R v Spizzirri [2001] 2 Qd R 686 at 694.Consideration – Ground 1 It is convenient to consider the four aspects set out in paragraph [60] above separately.Paragraph 8(a) – 1999 Disclosures The proposition at the heart of this aspect of the case is that SIS made sexual abuse disclosures in 1999, and if the statement was true, it casts doubt on the truthfulness of those disclosures. This is said to be triggered by that part of the statement in which SIS said it was not until she was in high school that she realised what the appellant was doing was wrong. The evidence from SIS was that in 1999 she told her father and his partner, and then went to the police. She was then 10 years old.[99] Four years later, when she ran away, she told TAF about the sexual offending.[100][99]AB 190 line 2.[100]AB 193 line 32. Cross-examination covered the following points:(a)SIS told police in March 1999;[101](b)she was cross-examined about what she said as to the good and bad things about where she lived;[102](c)the interview also contained sexual abuse allegations;[103](d)what SIS said then mirrored her evidence at trial;[104] and(e)she said, “I didn’t want to … have to live in a house where I was getting abused”.[105][101]AB 196 line 23; AB 197 line 20.[102]AB 198 – AB 201.[103]AB 200 line 29; AB 201 line 31.[104]AB 201 line 31.[105]AB 201 line 46. SIS said she withdrew the complaint made in 1999 because she missed her siblings.[106][106]AB 202 line 1. SIS was cross-examined extensively with the assistance of records obtained from Juvenile Aid, Child Safety, Police and others. In the course of that cross-examination, SIS was questioned about the complaints of sexual abuse she made against the appellant in 2003, the withdrawal of that complaint, and it was put to her that in 2003 those accusations were being made she was making false accusations of sexual assault. The essence of that cross-examination is set out below.“Put: in 2003 SIS made a complaint of sexual abuse against the appellant:[107][107]AB 216 lines 7-16.“All right. Now, you had a conversation with the Bundaberg Juvenile Aid Bureau as well as Child Safety and you made another complaint about [the appellant] sexually assaulting you; do you recall making a complaint at about that time?---No.And when I say ‘sexual assault’ I’m using that as a shorthand, it’s about sexual offences you said [the appellant] had committed on you?---Yes.So do you recall telling police and Child Safety about - - -?---Yes, I do.Okay. You do. But not the other things?---No.Not about being struck by [the appellant], not about the police being called?---No.And not about the accusations of drugs?---No.”Put: in 2003, aged 14, SIS withdrew the complaint about the appellant:[108]“All right. Now, you then told the – and I don’t know whether I’ve got the sequence right, and perhaps I’ll do it in reverse. In 2003 you withdrew any complaint of a sexual nature against [the appellant]?---I cannot remember.That’s a conversation you had with the police officer about the complaints you’d made about his behaviour and you withdrew that complaint in 2003?---Okay.All right. Do you recall withdrawing a complaint at all at that time?---No.”Put: in 2003 SIS was making false accusations of sexual assault:[109]“I suggested to you that you were making false statements of sexual abuse in order to remove yourself from living with [the appellant]? And you’ll just have to answer in words. You did - - -?---That it wasn’t true.”[108]AB 216 lines 29-38.[109]AB 218 lines 24-26.