R v Vo - [2024] QCA 96

SUPREME COURT OF QUEENSLAND

CITATION:

R v VO [2024] QCA 96

PARTIES:

R
v
VO
(appellant)

FILE NO/S:

CA No 125 of 2022
DC No 27 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Warwick – Date of Conviction: 30 May 2022 (Lynch KC DCJ)

DELIVERED ON:

28 May 2024

DELIVERED AT:

Brisbane

HEARING DATE:

22 November 2023

JUDGES:

Morrison and Bond JJA and Crow J

ORDER:

The appeal must be dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant faced a trial on a single indictment alleging counts of sexual offending against his step daughter and separately against his biological daughter – where the appellant applied for an order that the counts relating to his step daughter be tried separately from the counts relating to his biological daughter – whether the primary judge erred in refusing to order separate trials on the grounds that the evidence of the complainants was cross-admissible – whether the judge erred in concluding that the evidence was admissible tendency or propensity evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where the appellant faced a trial on a single indictment alleging counts of child sexual offending against his step daughter and separately against his natural daughter – where the risk that the two complainants had spoken to each other and concocted aspects of their evidence was a live issue at trial - whether a miscarriage of justice was occasioned when the trial judge’s directions did not follow the Benchbook form of direction in addressing that risk

BBH v The Queen (2012) 245 CLR 499; [2012] HCA 9, cited
HCF v The Queen (2023) 97 ALJR 978; [2023] HCA 35, cited
Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7, considered
Phillips v The Queen (2006) 225 CLR 303; [2006] HCA 4, cited
R v LBE[2024] QCA 53, followed
R v McNeish (2019) 2 QR 355; [2019] QCA 191, considered
R v WRC (2002) 130 A Crim R 89; [2002] NSWCCA 210, cited
R v YF[2023] QCA 111, cited

COUNSEL:

P J Wilson and J E Marxson for the appellant (pro bono)
C Cook for the respondent

SOLICITORS:

Bell Criminal Lawyers for the appellant (pro bono)
Director of Public Prosecutions (Queensland) for the respondent

MORRISON JA: I agree with Bond JA.
BOND JA: Between 24 and 30 May 2022, the appellant faced a jury trial in the District Court in respect of an 18-count indictment alleging sexual offences against his stepdaughter MAM and his biological daughter KLB.
The respondent accepted the accuracy of the appellant’s summary of the critical evidence at trial:
“6. [MAM] was the complainant for counts one and two. [KLB] was the complainant for the remaining…

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 Vo

Details

AGLC: R v Vo [2024] QCA 96
Case: [2024] QCA 96
Decision Date: 28 May 2024

CaseChat Overview and Summary

The case of R v Vo involved an appeal by the appellant against his conviction and sentence for multiple counts of sexual offences against both his step-daughter and biological daughter. The central issues in the appeal were the admissibility of propensity evidence and the trial judge's directions to the jury regarding the risk of contamination of the complainants' testimonies. The District Court Judge had denied the appellant's application for separate trials, holding that the evidence was cross-admissible. The appellant argued that the evidence was inadmissible as it constituted similar fact evidence, and that the trial judge's directions to the jury on the risk of contamination of the complainants' testimonies constituted a misdirection that led to a miscarriage of justice.

The Court of Appeal considered the admissibility of the evidence under the four-stage analysis set out in R v McNeish, concluding that the evidence was indeed cross-admissible because it demonstrated the appellant's tendency or propensity to engage in sexual activity with children in his care. The Court found that the evidence contained features linking the uncharged acts with the charged offences, and that its probative force outweighed any prejudicial effect. The Court also considered the appellant's argument that the trial judge's directions to the jury did not sufficiently address the risk of contamination of the complainants' testimonies, but found that any error in the directions did not occasion a miscarriage of justice.

The Court of Appeal held that the appeal should be dismissed, and that the appellant's conviction and sentence should be upheld. The Court found that the evidence was properly admitted and that any error in the trial judge's directions did not result in a miscarriage of justice. Accordingly, the appeal was dismissed, and the appellant's conviction and sentence were upheld.

Orders

Orders of the court

The appeal must be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The first two grounds may conveniently be dealt with together.Admissibility of propensity evidence: the first and second grounds of appeal The appellant made a pre-trial application to Lynch KC DCJ which sought separate trials in relation to each complainant. He argued that the evidence of each complainant in relation to the alleged offending against her was not cross-admissible in relation to the offending alleged against the other complainant because it should have been excluded as inadmissible similar fact evidence. Lynch KC DCJ considered the Crown case as it then appeared. After a discussion of relevant High Court authority, including Pfennig v The Queen[1], his Honour then had regard to the four-stage analysis approved by this Court in R v McNeish.[2] His Honour reasoned as follows:(a)First, the factual issue that the Crown sought to prove by the evidence was that the defendant had the tendency or propensity to engage in sexual activity with a female child in his care.(b)Second, having reviewed the proposed evidence of each of the complainants, he found that it was capable of demonstrating that the defendant, over the period alleged by each of them, had demonstrated a tendency or propensity to engage in sexual activity with a child in his care.(c)Third, he then considered whether the evidence of the uncharged acts[3] if accepted, contained some feature which linked the doing of the uncharged acts with the charged offence by reference to a particular issue in the case. He answered that question in the affirmative, reasoning that, when considering the specific allegations of MAM, a jury accepting the allegations of KLB might conclude that it was more likely the allegations of MAM were truthful having been satisfied that the defendant had demonstrated the relevant propensity, and vice versa.(d)Fourth, he considered whether the probative force of the evidence, upon the assumption that the jury accepted it, was sufficient to overcome its prejudicial effect. He noted that the relevant prejudicial effect was the use of the evidence by the jury for an impermissible purpose. He answered that question in the affirmative, concluding that use for an impermissible purpose could be sufficiently addressed in directions to the jury.(e)He concluded that the evidence was cross-admissible because he was satisfied that there was no rational view of it consistent with innocence. The evidence of MAM was admissible as circumstantial evidence in proof of the specific charges relating to KLB and vice versa. The consequence was that there was no basis to order severance of the indictment as sought.[1]Pfennig v The Queen (1995) 182 CLR 461.[2]R v McNeish [2019] QCA 191.[3]This must be taken to be a reference to the evidence of the acts alleged by one complainant which, necessarily, are not the subject of the charges against the other complainant. In this Court the appellant accepted that the admissibility argument was a foundational issue when it came to cross-admissibility between the allegations of the two complainants, and therefore, joinder. He submitted that the evidence lacked the probative force necessary to allow for its admission. He submitted that the overwhelming prejudicial effect of the evidence was obvious. It should have been excluded. It followed that the application for separate trials should have been allowed. He did not seek to support the second ground of appeal on any other basis than the alleged error in relation to the admissibility of propensity evidence.

Decision

Reasons for decision

In the particular context of this case the failure to give the direction in the specific manner for which the appellant contended was not an error. But even if it could be so characterized, in my view it did not give rise to a miscarriage of justice because it could not have caused any prejudicial or practical injustice to the appellant in the sense discussed in the majority judgment in HCF v The Queen.[15] Accordingly, the third ground of appeal fails.[15]HCF v The Queen (2023) 97 ALJR 978; [2023] HCA 35 at [2] per Gageler CJ, Gleeson and Jagot JJ.Conclusion The appeal must be dismissed. CROW J: I agree with Bond JA.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v VO [2024] QCA 96
PARTIES:	R v VO (appellant)
FILE NO/S:	CA No 125 of 2022 DC No 27 of 2022
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Warwick – Date of Conviction: 30 May 2022 (Lynch KC DCJ)
DELIVERED ON:	28 May 2024
DELIVERED AT:	Brisbane
HEARING DATE:	22 November 2023
JUDGES:	Morrison and Bond JJA and Crow J
ORDER:	The appeal must be dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant faced a trial on a single indictment alleging counts of sexual offending against his step daughter and separately against his biological daughter – where the appellant applied for an order that the counts relating to his step daughter be tried separately from the counts relating to his biological daughter – whether the primary judge erred in refusing to order separate trials on the grounds that the evidence of the complainants was cross-admissible – whether the judge erred in concluding that the evidence was admissible tendency or propensity evidence CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where the appellant faced a trial on a single indictment alleging counts of child sexual offending against his step daughter and separately against his natural daughter – where the risk that the two complainants had spoken to each other and concocted aspects of their evidence was a live issue at trial - whether a miscarriage of justice was occasioned when the trial judge’s directions did not follow the Benchbook form of direction in addressing that risk BBH v The Queen (2012) 245 CLR 499; [2012] HCA 9, cited HCF v The Queen (2023) 97 ALJR 978; [2023] HCA 35, cited Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7, considered Phillips v The Queen (2006) 225 CLR 303; [2006] HCA 4, cited R v LBE[2024] QCA 53, followed R v McNeish (2019) 2 QR 355; [2019] QCA 191, considered R v WRC (2002) 130 A Crim R 89; [2002] NSWCCA 210, cited R v YF[2023] QCA 111, cited
COUNSEL:	P J Wilson and J E Marxson for the appellant (pro bono) C Cook for the respondent
SOLICITORS:	Bell Criminal Lawyers for the appellant (pro bono) Director of Public Prosecutions (Queensland) for the respondent