R v Tong (a pseudonym) - [2021] QCA 261

SUPREME COURT OF QUEENSLAND

CITATION:

R v Tong (a pseudonym) [2021] QCA 261

PARTIES:

R
v
TONG (a pseudonym)
(appellant/applicant)

FILE NO/S:

CA No 280 of 2020
CA No 79 of 2021
DC No 43 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Cairns - Date of Conviction: 25 March 2021; Date of Sentence: 25 March 2021 (Fantin DCJ)

DELIVERED ON:

3 December 2021

DELIVERED AT:

Brisbane

HEARING DATE:

21 July 2021

JUDGES:

Sofronoff P and McMurdo JA and Applegarth J

ORDERS:

1. The appeal is dismissed.

2. The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – where the appellant was found guilty by a jury of four counts of rape of an 11 year old girl – where the appellant was 17 years of age at the time – where the rapes occurred at a graduation function – where the complainant told a number of people about the offences – where the complainant’s version of events, as told by preliminary complaint witnesses, differed between those preliminary complaint witnesses – whether the appellant had an opportunity to commit the charged offences – whether inconsistences between the complaints, as told to preliminary complaint witnesses and to police, ought to have given rise to a reasonable doubt as to the appellant’s guilt

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where the trial judge noted the difficulties prosecution witnesses might have experienced when giving evidence due to their age, culture and the passage of time – where a redirection was sought and given – whether the trial judge gave the jury an unbalanced summing up

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR APPEAL – JUDGE ACTED ON WRONG PRINCIPLE – where the appellant was found guilty by a jury of four counts of rape of an 11 year old girl – where the appellant was 17 years of age at the time – where the sentencing judge noted that the offending involved a degree of force – where the appellant contended that he did not inflict gratuitous violence and made no threats of violence – whether the sentencing judge acted on an error of fact

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR APPEAL – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was found guilty by a jury of four counts of rape of an 11 year old girl – where the appellant was 17 years of age at the time – where the appellant received a sentence of three and a half years’ imprisonment, with parole eligibility after serving half that sentence – whether the sentence was manifestly excessive

Youth Justice Act 1992 (Qld), s 140, s 144

McKell v The…

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 Tong (a pseudonym)

Details

AGLC: R v Tong (a pseudonym) [2021] QCA 261
Case: [2021] QCA 261
Decision Date: 3 December 2021

CaseChat Overview and Summary

The appellant, Tong, appealed against his conviction of four counts of raping an 11-year-old girl, as well as the sentence he was given. The alleged offences occurred at a graduation function when Tong was 17 years of age. The complainant had informed several people about the offences, and her account of the events as recounted by various witnesses differed. The central issues before the court were whether the appellant had the opportunity to commit the offences, whether the inconsistencies between the accounts of the complainant warranted a reasonable doubt, and if the trial judge misdirected or non-directed the jury, leading to a miscarriage of justice.

The court examined the inconsistencies in the complainant’s accounts and found that they did not necessarily undermine her credibility or the reasonableness of the jury’s verdict. It was held that the jury was entitled to believe the complainant’s version of events and that the appellant had the opportunity to commit the offences. The court also rejected the claim that the trial judge’s direction to the jury was unbalanced or amounted to a misdirection. Although the trial judge acknowledged the potential difficulties the prosecution witnesses might have faced, the court found that the judge’s directions were appropriate and did not prejudice the appellant.

The appellant further contended that the sentencing judge acted on an incorrect principle and that the sentence was manifestly excessive. The court found no basis to support these contentions, as the sentencing judge had properly considered the relevant factors, including the degree of force involved. The court concluded that the sentence, which was three and a half years’ imprisonment with parole eligibility after half that time, was not manifestly excessive or inadequate.

The appeal was dismissed, and the application for leave to appeal against sentence was refused.

Orders

Orders of the court

1. The appeal is dismissed.

2. The application for leave to appeal against sentence is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

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 Tong (a pseudonym) [2021] QCA 261
PARTIES:	R v TONG (a pseudonym) (appellant/applicant)
FILE NO/S:	CA No 280 of 2020 CA No 79 of 2021 DC No 43 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Cairns - Date of Conviction: 25 March 2021; Date of Sentence: 25 March 2021 (Fantin DCJ)
DELIVERED ON:	3 December 2021
DELIVERED AT:	Brisbane
HEARING DATE:	21 July 2021
JUDGES:	Sofronoff P and McMurdo JA and Applegarth J
ORDERS:	1. The appeal is dismissed. 2. The application for leave to appeal against sentence is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – where the appellant was found guilty by a jury of four counts of rape of an 11 year old girl – where the appellant was 17 years of age at the time – where the rapes occurred at a graduation function – where the complainant told a number of people about the offences – where the complainant’s version of events, as told by preliminary complaint witnesses, differed between those preliminary complaint witnesses – whether the appellant had an opportunity to commit the charged offences – whether inconsistences between the complaints, as told to preliminary complaint witnesses and to police, ought to have given rise to a reasonable doubt as to the appellant’s guilt CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where the trial judge noted the difficulties prosecution witnesses might have experienced when giving evidence due to their age, culture and the passage of time – where a redirection was sought and given – whether the trial judge gave the jury an unbalanced summing up CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR APPEAL – JUDGE ACTED ON WRONG PRINCIPLE – where the appellant was found guilty by a jury of four counts of rape of an 11 year old girl – where the appellant was 17 years of age at the time – where the sentencing judge noted that the offending involved a degree of force – where the appellant contended that he did not inflict gratuitous violence and made no threats of violence – whether the sentencing judge acted on an error of fact CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR APPEAL – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was found guilty by a jury of four counts of rape of an 11 year old girl – where the appellant was 17 years of age at the time – where the appellant received a sentence of three and a half years’ imprisonment, with parole eligibility after serving half that sentence – whether the sentence was manifestly excessive Youth Justice Act 1992 (Qld), s 140, s 144 McKell v The…