SUPREME COURT OF QUEENSLAND
CITATION:
R v VN [2023] QCA 184
PARTIES:
R
v
VN
(appellant)FILE NO/S:
CA No 175 of 2021
DC No 818 of 2021DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
District Court at Brisbane – Date of Conviction: 13 May 2021 (Clare SC DCJ)
DELIVERED ON:
12 September 2023
DELIVERED AT:
Brisbane
HEARING DATE:
1 August 2023; 2 August 2023
JUDGES:
Bowskill CJ and Morrison and Dalton JJA
ORDER:
Appeal dismissed.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – FRESH EVIDENCE – GENERAL PRINCIPLES – where the appellant was convicted by a jury of three counts of rape, one count of assault with intent to commit rape and two counts of common assault – where the appellant was in a relationship with the complainant’s mother at the time of the offences, and where the complainant was effectively the appellant’s step-daughter – where the appellant’s case at trial was that he was in a consensual sexual relationship with the complainant – where on appeal the appellant contended that further video footage, expert evidence, phone data, Google map timelines, evidence of the appellant purchasing gifts for the complainant and evidence of the appellant purchasing a lock for the complainant’s bedroom door was either fresh or new evidence that ought to have been in evidence at his trial, and that trial counsel was incompetent for failure to achieve that – whether the absence of the evidence at trial deprived the appellant of the possibility of an acquittal such that his trial miscarried
Criminal Code (Qld), s 590AB, s 668E(1)
Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35, cited
Nudd v The Queen (2006) 80 ALJR 614; [2009] HCA 9, cited
Orreal v The Queen (2021) 96 ALJR 78; [2021] HCA 44, cited
R v Agnew[2021] QCA 190, cited
R v KBC[2023] QCA 60, cited
R v LSS [2000] 1 Qd R 546; [1998] QCA 303, cited
R v Paddon [1999] 2 Qd R 387; [1998] QCA 248, cited
R v RH [2005] 1 Qd R 180; [2004] QCA 225, cited
R v SDT (2022) 11 QR 556; [2022] QCA 159, cited
R v SEC[2023] QCA 128, cited
R v Skondin[2015] QCA 138, cited
R v Spina[2012] QCA 179, cited
R v Szabo [2001] 2 Qd R 214; [2000] QCA 194, cited
Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35, cited
Rodi v Western Australia (2018) 265 CLR 254; [2018] HCA 44, cited
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, cited
Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65, citedCOUNSEL:
K M Hillard and R W Haddrick for the appellant (pro bono)
J D Finch for the respondentSOLICITORS:
Justice Law Practice Pty Ltd for the…
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Details
- AGLC
- R v VN [2023] QCA 184
- Case
- [2023] QCA 184
- Decision Date
CaseChat Overview and Summary
In the matter of R v VN, the appellant, who was convicted by a jury of various serious sexual offences, appealed against his convictions. The appellant argued that the absence of certain evidence at trial deprived him of a fair trial and constituted a miscarriage of justice. The evidence in question included video footage, expert evidence, phone data, Google map timelines, evidence of gifts purchased for the complainant, and evidence of a lock purchased for the complainant's bedroom door.
The court was tasked with determining whether the appellant's trial was rendered unfair by the absence of this evidence and whether this amounted to a miscarriage of justice. The court had to assess whether the new evidence was fresh or new, and whether it could have influenced the jury's verdict. Additionally, the court examined whether trial counsel was incompetent for failing to adduce this evidence at trial.
The court concluded that the evidence the appellant sought to introduce was either fresh or had already been before the jury in some form. The court held that the absence of this evidence did not deprive the appellant of a fair trial or an opportunity to be acquitted. The evidence would not have been favourable to the appellant's defence, and thus, no miscarriage of justice had occurred. The appeal against conviction was dismissed.
The judges agreed that the appeal ought to be dismissed, with Morrison JA and Dalton JA concurring with the Chief Justice's reasons and proposed order. The court found that the appellant's trial was fair, and no miscarriage of justice had occurred due to the absence of the new evidence.
The court was tasked with determining whether the appellant's trial was rendered unfair by the absence of this evidence and whether this amounted to a miscarriage of justice. The court had to assess whether the new evidence was fresh or new, and whether it could have influenced the jury's verdict. Additionally, the court examined whether trial counsel was incompetent for failing to adduce this evidence at trial.
The court concluded that the evidence the appellant sought to introduce was either fresh or had already been before the jury in some form. The court held that the absence of this evidence did not deprive the appellant of a fair trial or an opportunity to be acquitted. The evidence would not have been favourable to the appellant's defence, and thus, no miscarriage of justice had occurred. The appeal against conviction was dismissed.
The judges agreed that the appeal ought to be dismissed, with Morrison JA and Dalton JA concurring with the Chief Justice's reasons and proposed order. The court found that the appellant's trial was fair, and no miscarriage of justice had occurred due to the absence of the new evidence.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
There being no objection from the respondent, the appellant was given leave to rely upon further evidence from himself, his solicitor, an expert (Dr Sorrell), an interpreter and one of the barristers who is part of the pro bono team assisting him on his conviction appeal, for the purposes of determining the appeal. With the expansion of the grounds of appeal to allege incompetence, the court also received evidence from the appellant’s trial lawyers.Evidence at the trial In order to deal with the various grounds of appeal, it is necessary to understand the context, having regard to the course taken, and evidence given at the trial. The complainant was born in Sri Lanka, and came to Australia in 2013, aged 13, with her mother and her brother (who is four years older than the complainant). At the trial, the complainant and her brother spoke English well enough to give evidence without an interpreter. The complainant’s mother did not; she gave evidence at the trial in the Tamil language, with the assistance of an interpreter. The appellant is also Sri Lankan, does not speak English well and required the assistance of a Tamil interpreter to understand the proceedings and provide instructions. Shortly before the trial commenced, orders were made that each of the complainant, her mother and her brother was a “special witness” within the meaning of s 21A of the Evidence Act 1977 and that their evidence be given in a remote room and pre-recorded. The pre-recording of their evidence took place on 28, 29 and 30 April 2021. The trial commenced on 29 April 2021, with the jury being empanelled on that day. But as the pre-recording of the evidence of the special witnesses was still ongoing, the trial was otherwise adjourned until Tuesday, 4 May 2021. The complainant was 21 at the time she gave evidence in April 2021; she was born in March 2000. She recalled meeting the appellant for the first time in about October 2017, when he came to their home. The circumstances were traumatic: her mother had attempted suicide. Although that was the first time the complainant had met the appellant, she said something was “going on with” her mother and the appellant prior to that. In fact, the mother had met the appellant a number of years earlier, in 2014, shortly after she and her two children (the complainant and her brother) had arrived in Australia from Sri Lanka. The appellant had given her his phone number and said to contact him if she needed any help. He then moved to Sydney for some time before returning to Brisbane. He started to visit the complainant’s mother regularly from October 2017. The appellant had a wife and children in Sri Lanka. When he started to visit the complainant’s mother, from October 2017, she said “[h]e told me that he is now living single. The wife in Sri Lanka is having a relationship with someone else there, so I want to live with you, I will marry you, like that, he talked to me very romantically”. The home the complainant, her mother and her brother lived in at this time was small, a two-storey unit with two bedrooms. The complainant and her mother shared one bedroom and her brother slept in the other. From October 2017, the appellant started to stay the night sometimes. In the bedroom they shared, the complainant had a single bed and her mother had a double bed. When the appellant stayed over, he slept with the mother in the mother’s bed. The complainant would sleep in her bed, facing the wall.
Decision
Reasons for decision
The summary was succinct and accurate.Conclusion The case against the appellant was a relatively strong and compelling one and defence counsel did the best that could be done on behalf of his client. In so far as the original video is concerned, the appellant was selective in what he chose to give, and tell, his trial lawyers, and having done so cannot now have a “second go”. In any event, the original video would have bolstered, rather than undermined, the case against the appellant. Since the expert evidence of Dr Sorrell leads to the original video being before the jury, and would necessitate the appellant giving evidence, that too would not have been favourable for him. The absence at the trial of the remaining new evidence put forward on this appeal is not such that it can reasonably be concluded the appellant was denied the opportunity of an acquittal that was fairly open. No miscarriage of justice has been shown. The appeal against conviction ought to be dismissed. MORRISON JA: I agree with the Chief Justice. DALTON JA: I agree with the order proposed by Bowskill CJ and with her reasons. APPENDIXAMENDED GROUNDS OF APEPAL“1.The Original Video Footage on the Silver USB Pen Drive, to be adduced with leave by the Appellant on appeal, from which the video that was tendered at the trial as MFI#B (and later tendered as Exhibit 9) originated from:(a)Is fresh evidence, sufficient to cast doubt on the jury verdicts, the absence of which deprived the Appellant of the possibility of an acquittal such that his trial miscarried;(b)Alternatively, is new evidence, where the absence of this evidence deprived the Appellant of the possibility of an acquittal such that his trial miscarried;(c)Further in the alternative, the Appellant’s trial miscarried due to the conduct and incompetence of his Trial Counsel, in that a reasonably competent barrister would have:A. Advised the Appellant concerning the need to obtain a defence expert report, and having so obtained a report, known to have asked for the device on which the original video footage was recorded (the Silver USB Pen Drive), orB. Have asked for the Silver USB Drive on which the original video recording was taken.2.The contradictory expert evidence, to be adduced with leave by the Appellant on appeal, in the report and affidavit of Professor Matthew Sorrell:(a)Is fresh evidence, sufficient to cast doubt on the jury verdicts, the absence of which deprived the Appellant of the possibility of an acquittal such that his trial miscarried;(b)Alternatively, is new evidence, where the absence of this evidence deprived the Appellant of the possibility of an acquittal such that his trial miscarried;(c)Further in the alternative, the Appellant’s trial miscarried due to the conduct and incompetence of his Trial Counsel, in that a reasonably competent barrister would have:A. Objected to the admission of the prosecution expert evidence on the ground of unfairness to the Appellant after the trial had already commenced; and/orB. Advised the Appellant that a defence expert report and evidence should be obtained to contradict the prosecution expert, and/orC. Advised the Appellant to apply and sought instructions from him to apply to adjourn the trial for sufficient time to obtain a defence expert report and evidence (and make such an application), and/orD. Advised the Appellant to apply and sought instructions from him to apply for a mistrial of the trial to obtain a defence expert report and evidence, so that evidence could be used on a retrial (and make such an application), and/orE. Advised the Appellant that he could give evidence and adduce evidence to explain the artefacts on Exhibit 9 and to provide evidence of the corruption of the video file tendered as Exhibit 9; and/orF. On the prosecution voir dire being conducted of the prosecution expert, and the subsequent ruling made admitting the prosecution expert evidence, Counsel should have revisited the Appellant’s instructions on not giving and calling evidence prior to him being called on, and in doing so, advised the Appellant of any or all of the above matters at A to E, and/orG. Advised the Appellant against admitting that Exhibit 9 was produced by him.3.The communications between the complainant and the Appellant (namely the Viber contact, Duo App use, messages, videos, calls, emails, emojis, images and texts) contained on the Appellant’s mobile phone/s seized by police on 2 May 2019, and disclosed to the defence on blue ray disc prior to trial on 21 April 2021 (“the Phone Data”):(a)Is new evidence, where the absence of this evidence deprived the Appellant of the possibility of an acquittal such that his trial miscarried;…(c)Further in the alternative, the Appellant’s trial miscarried due to the conduct and incompetence of his Trial Counsel, in that a reasonably competent barrister would have:A. Viewed the Phone Data prior to the commencement of the pre-recorded evidence of the Complainant, and/or before the commencement of the Appellant’s trial; andB. Cross-examined the complainant as to the content, dates and details of the Phone Data; and/orC. Cross-examined the arresting police officer as to the Phone Data;Further, if the above matters at B or C were not done, or were not accepted by the witnesses, a reasonably competent barrister would have done any or all of the following:D. Sought to have the Phone Data tendered by the Crown as other exhibits had already been tendered by the Crown for the benefit of the Appellant’s Defence; and/orE. Advised the Appellant that he could seek admissions for the Phone Data evidence to be placed before the jury (and done so); and/orF. Advised the Appellant that he could give evidence and adduce the Phone Data evidence himself; and/orG. Advised the Appellant that an expert could be sought to give defence evidence about the Phone data and its contents.4.The Google Map Timeline print outs (“the Maps”) obtained from the Appellant’s Google Account on his device that the Appellant provided to his solicitor prior to his trial is:(a)New evidence, where the absence of this evidence deprived the Appellant of the possibility of an acquittal such that his trial miscarried;…(c)Further in the alternative, the Appellant’s trial miscarried due to the conduct and incompetence of his Trial Counsel, in that a reasonably competent barrister would have:A. Viewed the Maps and considered (or obtained) the Appellant’s instructions concerning the Maps; and/orB. Considered and viewed the Maps against the Phone Data disclosed on the blue ray disc prior to trial and identified the Phone Data evidence consistent with the Appellant’s Defence case.Further, a reasonably competent barrister having done any or all of the above matters at A or B would have:C. Cross-examined of the complainant as to the Maps;D. Cross-examined the complainant as to the Maps and Phone data communications consistent with the Appellant’s Defence case;E. Cross-examined the arresting police officer as to the Phone Data communications, and knowledge of the Maps contents, and evidence consistent with the Appellant’s Defence case;Further, if the above matters at C, D or E were not done, or were not accepted by the witnesses, a reasonably competent barrister would have done any or all of the following:F. Sought to have the Maps tendered by the Crown as other exhibits had already been tendered by the Crown for the benefit of the Appellant’s Defence; and/orG. Advised the Appellant that he could seek admissions for the Maps evidence to be placed before the jury (and done so); and/orH. Advised the Appellant that he could give evidence and adduce the Maps evidence himself; and/orI. Advised the Appellant that an expert could be sought to give defence evidence about the Maps and their contents; and/or [sic]5.In respect of the following new evidence on appeal, when considered with the Original Video Footage, Phone Data and/or Maps adduced on appeal, the absence of any one or more of the following items of evidence, the absence of which deprived the Appellant of the possibility of an acquittal such that his trial miscarried:(a)The video of the complainant’s 18th birthday; and/or(b)The evidence of the Appellant’s purchase of the gifts to the complainant of the ceramic rose and teddy bear; and/or(c)The evidence of the Appellant’s purchase of the lock for the complainant’s bedroom door; and/or(d)The video of the complainant’s 19th birthday.6.The Appellant’s trial miscarried from one or more of the following cumulative errors:(a)The learned trial Judge allowed the return of MFI#B to the Crown; and/or(b)The absence of provision to the jury of a corrected Exhibit 8 transcript and/or transcript of the evidence of the expert interpreter (Mr Mezhiselvam Ponnusany); and/or(c)The learned trial Judge failed to correct direct the jury by reference to the evidence concerning the preliminary complaint evidence; and/or(d)The learned trial Judge failed to correctly, or properly, refer to the expert interpreter’s evidence (Mr Mezhiselvam Ponnusany) concerning the meaning of “ruin” when directing the jury.”
Ratio Decidendi
Legal Principle Established
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