R v TN

Case [2005] QCA 160

SUPREME COURT OF QUEENSLAND

CITATION:  R v TN [2005] QCA 160
PARTIES:  R
v
TN
(appellant)
FILE NOS:  CA No 230 of 2004
DC No 30 of 2004
DIVISION:  Court of Appeal
PROCEEDING:  Appeal against Conviction
ORIGINATING 
COURT: 		 District Court at Gladstone
DELIVERED ON:  13 May 2005
DELIVERED AT:  Brisbane
HEARING DATE:  11 April 2005
JUDGES:  Williams and Keane JJA and Helman J
Separate reasons for judgment of each member of the Court,
each concurring as to the order made
ORDER:  Appeal against conviction dismissed

CATCHWORDS: 

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - CONDUCT OF LEGAL PRACTITIONERS - where defence counsel alleged to have not pursued all available avenues of pre-trial disclosure - where defence counsel alleged to have not taken a proof of evidence from the appellant and of other available witnesses - where defence counsel elected not to call the appellant to give evidence - where defence counsel did not seek an adjournment or mistrial as a result of a change in Crown evidence - where defence counsel did not ask for redirections - whether there had been a miscarriage of justice on the ground that this conduct was not reasonably explicable

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - WHERE GROUNDS FOR INTERFERENCE WITH VERDICT - PARTICULAR CASES - WHERE APPEAL DISMISSED - where jury convicted the appellant on multiple counts of indecent treatment of a child under 16 but were unable to agree on two counts of rape and one other of indecent treatment of a child under 16 - whether in the circumstances the trial judge gave adequate directions to the jury regarding the complainant's evidence; the significance of the appellant's failure to give evidence; statements required to be made by the judge under the Evidence Act 1977 (Qld) s 21AW; the appropriate standard of proof in relation to uncharged acts; and the relevance of evidence led in support of one count to the determination of guilt on any other count

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - POWER TO DISMISS APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE - PARTICULAR MATTERS - where the trial judge committed an error of law in not giving directions as required by the Evidence Act 1977 (Qld) s 21AW(2) - whether notwithstanding that error of law no substantial miscarriage of justice occurred

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE APPEAL DISMISSED - where jury convicted the appellant on multiple counts of indecent treatment of a child under 16 but were unable to agree on two counts of rape and one other of indecent treatment of a child under 16 - whether verdicts were inconsistent

Criminal Code 1899…

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AGLC
R v TN [2005] QCA 160
Case
[2005] QCA 160
Decision Date

CaseChat Overview and Summary

The case before the court involved an appeal by the appellant against their conviction. The appellant was charged with multiple counts of indecent dealing and rape. The court had to consider whether the appellant's conduct during the trial amounted to a miscarriage of justice. The key issues were whether the defence counsel had failed to pursue all available avenues of pre-trial disclosure, whether they had taken a proof of evidence from the appellant and other witnesses, and whether they had elected not to call the appellant to give evidence. Additionally, the court had to determine whether the failure to seek an adjournment or mistrial as a result of a change in Crown evidence, and the decision not to ask for redirections, was reasonably explicable.

The court found that the jury had performed their functions correctly by accepting some of the complainant's evidence while rejecting other parts. The evidence provided, including photographs and witness statements, supported the jury's conclusion. The court held that the appellant's contention of a miscarriage of justice was not substantiated. The court was satisfied that the defence counsel's decisions were reasonably explicable and did not amount to a miscarriage of justice. Therefore, the appeal was dismissed. The reasoning was that the jury had exercised its discretion appropriately, and the defence counsel's actions did not prejudice the appellant's right to a fair trial.

The final orders of the court were to dismiss the appeal against conviction. The appeal was rejected on the basis that no miscarriage of justice had occurred, and the appellant's contentions were not substantiated by the evidence or the law. The court concluded that the trial had been conducted fairly and that the jury's verdict was supported by the evidence presented.

Orders

Orders of the court

Appeal against conviction dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

It is necessary briefly to summarize the important aspects of the evidence in the case before returning to an examination of the appellant's contentions. Evidence The first count of indecent dealing with which the appellant was charged was alleged to have occurred at the family's home at Bundaberg. According to the complainant's evidence-in-chief, the complainant, her mother and the appellant had come home from playing ten pin bowling. The complainant and the appellant were in a downstairs room while the complainant's mother was upstairs. The appellant told her not to tell anybody about what he was going to do and then told her that he wanted her to touch his penis and testicles. She said no, but he grabbed her left hand and put it on his genitals and held it there for about five minutes. The complainant said this incident occurred on Thursday 19 August 1999 at about 8.30 pm. In cross-examination, the complainant said that the appellant had sex with her for the first time on a Tuesday night while they were living in Bundaberg. This incident was said to have occurred in her room while her mother was sewing. Before the appellant had sex with her, he put her hand on his genitals. The complainant did not tell the New South Wales police about the fact that the appellant went on to have sex with her because she was too embarrassed to tell them about it. She agreed that she had told the police that after the appellant let her hand go from his genitals, he went upstairs. As to the second count, a count of rape, the complainant's evidence-in-chief was that she and her mother and brother stayed the night at the appellant's house at Calliope on 22 August 1999. Her mother slept on a mattress in the lounge. The appellant woke the complainant and persuaded her to go to his bedroom where he took off her brown dress, grabbed her and pushed her onto his bed, saying "Have sex with me". She said "No, leave me alone". She threatened to tell her mother, but the appellant would not let her go. He put his penis in her vagina and pushed up and down for about five minutes. The complainant told him to leave her alone. He invited her out to the shed, but she left and went back to bed. She said that she did not call out because the appellant told her he would kill her. She said he had a cupboard which housed guns and knives. The day before she had had to carry ammunition to the cupboard. Under cross-examination, the complainant said that no threat to kill her was made that night. She maintained that the day before she had to carry the ammunition, and it was put to her that that claim conflicted with her statement that the night that this offence occurred was the night they arrived very late in Calliope. She then claimed she had to carry the ammunition at the house in Bundaberg, and she claimed that the appellant brought a gun with him to Bundaberg. In relation to the third count, which was the first count of indecent dealing on which the appellant was convicted, the complainant's evidence-in-chief was that she, her brother, her mother, the appellant and the four members of the B family who were friends of the appellant were camping at either Cania Gorge or Carnarvon Gorge ("the Gorge"). Her evidence was that the appellant "flashed himself" at everyone, and after this, the complainant went to the toilet. The appellant came into the toilet and said "Come on, let's do this again". The appellant put his finger in her vagina and then suggested that he try it with his "fruit". The complainant said "No". She then walked back to the campsite. The complainant said she did not tell her mother because she was scared of the appellant's guns.

Decision

Reasons for decision

The evidence of the photographs of the appellant's private parts, and the evidence of the plaintiff's mother supporting her presence in the appellant's motor vehicle on the trip back from the Gorge and of the complainant's evidence that the appellant accompanied her to the car park of the motel afford a reasonable basis for concluding that the jury did perform their functions as required, accepting some of the complainant's evidence while rejecting other parts of it.[39] [39] Cf Mackenzie v The Queen (1996) 190 CLR 348 at 367. Conclusion In my view, the appellant's contention that a miscarriage of justice occurred has not been made out. I would dismiss the appeal. HELMAN J: I agree with the order proposed by Keane JA and with his reasons.

Ratio Decidendi

Legal Principle Established

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