R v Wai - [2010] QCA 67

SUPREME COURT OF QUEENSLAND

CITATION:

R v WAI [2010] QCA 67

PARTIES:

R
v
WAI
(applicant/appellant)

FILE NOS:

CA No 202 of 2009
DC No 19 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Warwick

DELIVERED ON:

26 March 2010

DELIVERED AT:

Brisbane

HEARING DATE:

5 February 2010

JUDGES:

McMurdo P, Muir JA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The appeal against conviction be dismissed;

2.   The application for leave to appeal be granted and the appeal against sentence be allowed;

3.   The sentences imposed at first instance be varied by their being suspended forthwith with an operational period of 12 months from the 6 August 2009.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where appellant convicted on two counts (counts 1 and 3) of indecently dealing with a child under 16 in aggravating circumstances and acquitted on another count (count 2) – where count 1 involved appellant pulling complainant’s penis and anal digital penetration on a number of occasions – where count 2 involved anal digital penetration on one occasion – where appellant argued verdicts for counts 1 and 2 were inconsistent – where complainant did not mention the conduct subject of counts 1 and 2 in his first police interview – where complainant alleged his siblings were present for the count 1 conduct – where complainant’s siblings gave no evidence regarding the count 1 conduct – where complainant’s evidence exhibited inconsistencies – whether count 1 conviction was unreasonable or insupportable having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where complainant alleged his siblings were present for the conduct subject of counts 1 and 3 – where there were discrepancies between complainant’s evidence and siblings’ evidence – where appellant’s counsel did not cross-examine complainant’s siblings – whether counsel’s failure to cross-examine resulted in a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – whether primary judge misdirected the jury on the meaning of indecency

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where appellant submitted the Court could not be satisfied beyond reasonable doubt that penetration occurred in relation to count 1 – where appellant submitted count 3 conduct was momentary and intended to be biologically instructive – where respondent conceded primary judge sentenced on erroneous basis – where appellant reported count 3 conduct herself due to concern about complainant’s sexualisation – whether Court should exercise sentencing discretion – whether sentence manifestly excessive

M v The Queen (1994) 181 CLR 487, [1994] HCA 63, cited
MacKenzie v The Queen (1996) 190 CLR 348, [1996]…

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 Wai

Details

AGLC: R v Wai [2010] QCA 67
Case: [2010] QCA 67
Decision Date: 26 March 2010

CaseChat Overview and Summary

In the matter of R v Wai, the appellant contested his convictions and sentences on two counts of indecently dealing with a child under 16 in aggravating circumstances, while being acquitted on another count. The court was required to determine whether the convictions were unreasonable or insupportable in light of the evidence, whether the failure to cross-examine certain witnesses led to a miscarriage of justice, and whether the primary judge misdirected the jury on the meaning of indecency. Additionally, the court needed to assess if the sentence was manifestly excessive or inadequate.

The court found that while the evidence presented some inconsistencies, the jury was entitled to consider the credibility of the witnesses and the overall weight of the evidence. The appellant's argument that the convictions were inconsistent due to the complainant's failure to mention certain conduct in his first police interview was not persuasive. The court also held that the failure to cross-examine the complainant's siblings did not amount to a miscarriage of justice as it did not significantly impact the outcome. The court determined that the primary judge did not misdirect the jury on the meaning of indecency. However, the court found that the appellant's sentence was manifestly excessive, given the primary judge's reliance on an erroneous basis and the appellant's voluntary reporting of the conduct due to concern about the complainant's sexualisation.

The appeal against the convictions was dismissed, while the appeal against the sentence was allowed. The sentences imposed were varied to be suspended forthwith with an operational period of 12 months from the 6 August 2009.

Orders

Orders of the court

1. The appeal against conviction be dismissed;

2. The application for leave to appeal be granted and the appeal against sentence be allowed;

3. The sentences imposed at first instance be varied by their being suspended forthwith with an operational period of 12 months from the 6 August 2009.

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v WAI [2010] QCA 67
PARTIES:	R v WAI (applicant/appellant)
FILE NOS:	CA No 202 of 2009 DC No 19 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Warwick
DELIVERED ON:	26 March 2010
DELIVERED AT:	Brisbane
HEARING DATE:	5 February 2010
JUDGES:	McMurdo P, Muir JA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The appeal against conviction be dismissed; 2. The application for leave to appeal be granted and the appeal against sentence be allowed; 3. The sentences imposed at first instance be varied by their being suspended forthwith with an operational period of 12 months from the 6 August 2009.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where appellant convicted on two counts (counts 1 and 3) of indecently dealing with a child under 16 in aggravating circumstances and acquitted on another count (count 2) – where count 1 involved appellant pulling complainant’s penis and anal digital penetration on a number of occasions – where count 2 involved anal digital penetration on one occasion – where appellant argued verdicts for counts 1 and 2 were inconsistent – where complainant did not mention the conduct subject of counts 1 and 2 in his first police interview – where complainant alleged his siblings were present for the count 1 conduct – where complainant’s siblings gave no evidence regarding the count 1 conduct – where complainant’s evidence exhibited inconsistencies – whether count 1 conviction was unreasonable or insupportable having regard to the evidence CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where complainant alleged his siblings were present for the conduct subject of counts 1 and 3 – where there were discrepancies between complainant’s evidence and siblings’ evidence – where appellant’s counsel did not cross-examine complainant’s siblings – whether counsel’s failure to cross-examine resulted in a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – whether primary judge misdirected the jury on the meaning of indecency CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where appellant submitted the Court could not be satisfied beyond reasonable doubt that penetration occurred in relation to count 1 – where appellant submitted count 3 conduct was momentary and intended to be biologically instructive – where respondent conceded primary judge sentenced on erroneous basis – where appellant reported count 3 conduct herself due to concern about complainant’s sexualisation – whether Court should exercise sentencing discretion – whether sentence manifestly excessive M v The Queen (1994) 181 CLR 487, [1994] HCA 63, cited MacKenzie v The Queen (1996) 190 CLR 348, [1996]…