R v Yow-Yeh - [2019] QCA 17

SUPREME COURT OF QUEENSLAND

CITATION:

R v Yow-Yeh [2019] QCA 17

PARTIES:

R
v
YOW-YEH, Cedrick Peter Jason
(appellant)

FILE NO/S:

CA No 178 of 2018
DC No 44 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Bundaberg – Date of Conviction: 14 June 2018 (Clare SC DCJ)

DELIVERED ON:

12 February 2019

DELIVERED AT:

Brisbane

HEARING DATE:

6 November 2018

JUDGES:

Morrison and Philippides JJA and Boddice J

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted after a trial of one count of assault occasioning bodily harm – where the assault was alleged to have occurred when the appellant was drinking in a park with the complainant and two others – where there was no physical or photographic evidence – where only the complainant and one eyewitness gave evidence – where the complainant initially told medical staff he had fallen onto a rock – where there were inconsistencies in the evidence given by the complainant and the other eyewitness – whether the verdict was unreasonable having regard to the evidence

CRIMINAL LAW – PROCEDURE – VERDICT – OTHER MATTERS – where the taking of the verdict occurred in an irregular manner – whether the form in which the verdict was taken caused a miscarriage of justice

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
Milgate v The Queen (1964) 38 ALJR 162, cited
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, cited
R v Conway (2005) 157 A Crim R 474; [2005] QCA 194, cited
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, cited

COUNSEL:

The appellant appeared on his own behalf
C N Marco for the respondent

SOLICITORS:

The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

MORRISON JA: The appellant was convicted after a trial of one count of assault occasioning bodily harm. The appellant appeals his conviction on the basis that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence.
The general circumstances of the offence are as follows. On 4 November 2016 at about 6.00 pm, the appellant was drinking in a park in Bundaberg with several other individuals, including the complainant, Laurie Howe, Mr Howe’s girlfriend Lisa James and a person named Lincoln Saunders. The next day, an ambulance was called for Mr Howe. Dr Bee Ang, a doctor at Bundaberg Base Hospital, gave evidence that Mr Howe was admitted with multiple rib fractures. Mr Howe then developed pneumonia and he was admitted to the intensive care unit on 9 November 2016.
Dr Ang gave evidence at trial that Mr Howe’s patient records indicated that upon the ambulance arriving, Mr Howe stated that…

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 Yow-Yeh

Details

AGLC: R v Yow-Yeh [2019] QCA 17
Case: [2019] QCA 17
Decision Date: 12 February 2019

CaseChat Overview and Summary

The case of R v Yow-Yeh involved an appeal against the appellant's conviction for one count of assault occasioning bodily harm. The assault was alleged to have occurred in a park where the appellant, the complainant, and two others were drinking. There was no physical or photographic evidence of the incident, and only the complainant and one eyewitness gave evidence. The complainant initially told medical staff that he had fallen onto a rock. There were inconsistencies in the evidence given by the complainant and the eyewitness. The issue before the court was whether the verdict was unreasonable having regard to the evidence. Additionally, the court considered whether the manner in which the verdict was taken caused a miscarriage of justice.

The court examined the evidence and determined whether it was open to the jury to be satisfied of the guilt of the appellant beyond reasonable doubt. The court considered the pre-eminent position of the jury as the arbiter of fact, and whether the evidence lacked credibility for reasons which were not explained by the manner in which it was given. The court also considered whether there was a significant possibility that an innocent person had been convicted. The court found that the evidence, when considered as a whole, was sufficient for the jury to be satisfied of the appellant's guilt beyond reasonable doubt.

The court also considered whether the manner in which the verdict was taken caused a miscarriage of justice. The court found that there was no irregularity in the taking of the verdict that caused a miscarriage of justice.

The appeal was dismissed, and the conviction of the appellant was upheld. The court found that the evidence was sufficient to support the conviction, and that there was no miscarriage of justice in the trial.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The Crown submits it was open to the jury to accept the evidence of the complainant, that his injuries were caused by the appellant, particularly with the corroboration of eyewitness testimony. The jury were directed by the learned primary judge in accordance with law. Constable Ramsey was cross-examined concerning deficiencies in his preparation of the brief of evidence but those deficiencies were of little relevance.Evidence at trial Ska v The Queen[2] requires this Court perform an independent examination of the whole of the evidence to determine whether it was open to the jury to be satisfied of the guilt of the convicted person on all or any counts, beyond reasonable doubt. It is also clear that in performing that exercise the Court must have proper regard for the pre-eminent position of the jury as the arbiter of fact. M v The Queen held that:[3]“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.”[2](2011) 243 CLR 400 at [20]-[22]; [2011] HCA 13; see also M v The Queen (1994) 181 CLR 487 at 493-494; [1994] HCA 63.[3](1994) 181 CLR 487 at 494. Recently the High Court has restated the pre-eminence of the jury in R v Baden-Clay.[4][4](2016) 258 CLR 308 at [65]-[66]; [2016] HCA 35; internal citations omitted. The appellant did not call or give evidence.Evidence of the complainant The complainant gave evidence that on 4 November he had been drinking in the park with his fiancée (Ms James), the appellant, and another friend (Mr Saunders). He described his state of intoxication as “I was pretty drunk, yes”,[5] and continued:[6]“… [the appellant] got up and walked round the right side of me like that and slapped me in the face with an open hand first up. … Twice. Both open-handed, that one. … I said, ‘What the fuck was that for?’ The next thing, bang, bang with his fist … Well, fists – one to the left side, one to the right side. And I fell backwards onto the cement off my chair. The next thing I’m getting jumped all over. … like a big bull jumping all over me, on my chest. And then I sort of … blacked out for a split second. And then I felt the jumping all over my ribs and everything. I felt all the pain there, as well.” [5]AB2 14.[6]AB2 14-15.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Yow-Yeh [2019] QCA 17
PARTIES:	R v YOW-YEH, Cedrick Peter Jason (appellant)
FILE NO/S:	CA No 178 of 2018 DC No 44 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Bundaberg – Date of Conviction: 14 June 2018 (Clare SC DCJ)
DELIVERED ON:	12 February 2019
DELIVERED AT:	Brisbane
HEARING DATE:	6 November 2018
JUDGES:	Morrison and Philippides JJA and Boddice J
ORDER:	The appeal is dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted after a trial of one count of assault occasioning bodily harm – where the assault was alleged to have occurred when the appellant was drinking in a park with the complainant and two others – where there was no physical or photographic evidence – where only the complainant and one eyewitness gave evidence – where the complainant initially told medical staff he had fallen onto a rock – where there were inconsistencies in the evidence given by the complainant and the other eyewitness – whether the verdict was unreasonable having regard to the evidence CRIMINAL LAW – PROCEDURE – VERDICT – OTHER MATTERS – where the taking of the verdict occurred in an irregular manner – whether the form in which the verdict was taken caused a miscarriage of justice M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited Milgate v The Queen (1964) 38 ALJR 162, cited R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, cited R v Conway (2005) 157 A Crim R 474; [2005] QCA 194, cited SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, cited
COUNSEL:	The appellant appeared on his own behalf C N Marco for the respondent
SOLICITORS:	The appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent