Zany Wong v The Queen

[2012] NSWCCA 39

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Zany WONG v R [2012] NSWCCA 39

Hearing dates:

9 December 2011

Decision date:

05 April 2012

Before:

Meagher JA at [1]
Hoeben J at [2]
Rothman J at [3]

Decision:

(1) Leave to appeal granted;

(2) Appeal dismissed.

Catchwords:

CRIMINAL LAW - APPEAL - unreasonable verdict allegation - inconsistent verdict alleged - no reasonable doubt not resolved by juries capacity to observe the evidence - appeal dismissed.

Legislation Cited:

Crimes Act 1900
Criminal Appeal Act 1912

Cases Cited:

Alramadan v Director of Public Prosecutions (NSW) [2007] NSWCCA 322
Brendon Singh v The Queen [2011] NSWCCA 100
Jones v The Queen (1997) HCA 56; 191 CLR 439
Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
MFA v The Queen [2002] HCA 53; 213 CLR 606
SKA v The Queen [2011] HCA 13; 243 CLR 400

Category:

Principal judgment

Parties:

Zany Wong (appellant)
Regina (respondent)

Representation:

Counsel
K Averre (for the appellant)
T Smith (for the respondent)
Solicitors
Legal Aid (for the appellant)
Director of Public Prosecutions (for the respondent)

File Number(s):

2009/66126

 Decision under appeal 

Date of Decision:

2010-10-01 00:00:00

Before:

Williams DCJ

Judgment

1. MEAGHER JA: I have considered the evidence and addressed the respects in which there was competing evidence. I agree for the reasons given by Rothman J that it was open on the whole of that evidence for the jury to be satisfied beyond reasonable doubt that Zany Wong (the appellant) was guilty of each of the offences charged.

1. HOEBEN J: I agree with Rothman J and the order which he proposes.

1. ROTHMAN J: The appellant was charged by indictment with one count of aggravated sexual assault in 2002 (Count 1), one count of indecent assault in 2002 (Count 2) and a third charge, being a count of aggravated sexual assault in 2004 (Count 3). Counts 1 and 3 are a contravention of s 61J of the Crimes Act 1900 and Count 2 is a contravention of s 61L of the Crimes Act. The Indictment charged the third offence in the following terms:

"3. Between 1 January, 2004 and 27 December, 2004 at Marrickville in the State of New South Wales, did have sexual intercourse with [XXX] without her consent and knowing that she was not consenting, in circumstances of aggravation, namely that [XXX] was under the age of 16 years, namely 14 years."

1. The appellant pleaded not guilty to each charge and was found guilty on Counts 1 and 2 and not guilty on Count 3. He was convicted by unanimous verdict of the jury. The appellant appeals against his convictions. The single ground of appeal relied upon is that "the verdicts of guilty are unreasonable and cannot be supported by the evidence".

1. The appellant's submission is, in general, based on two related issues, being: first, that guilt depended on the complainant's testimony and the appellant's denial; and, secondly, that the verdict of not guilty to Count 3 means that the jury did not accept the complainant's evidence, at least in that respect. I will deal with each of these issues as part of the more general proposition that the convictions on the two counts were unreasonable. The appellant does not submit that the verdicts are, in the strict sense, inconsistent.

The Trial

1. These proceedings were a "second trial" in relation to the allegations - the first trial having been aborted without ever being completed. As a consequence, the complainant's evidence was given by playing an audiovisual recording of her evidence in the aborted trial. That audiovisual recording did not form part of the evidence (it was marked for identification as MFI 1 and 2). The recording was treated as if it were viva voce evidence, and was not transcribed in the ordinary way. A separate transcript was provided. The complainant was otherwise not subject to examination and cross-examination in Court: see Transcript 16 March 2010 pages 21 and 23 and Transcript, first trial, 24 and 25 February 2010 pages 1-74.

1. Otherwise, the trial was short and occupied four days of evidence and addresses (including the summing up of the trial judge). No complaint is made about the summing up or any interlocutory or other judgment of the trial judge or the conduct of the trial.

1. Both the complainant and the appellant are Chinese from Burma. The complainant came to Australia in 1995, when she was about six years old. The complainant was born on 28 December 1989. Her father had immigrated in 1991 and she, her mother and her brother joined her father in Australia in or about 1995. On her arrival in Australia, the complainant met the appellant and his family. The two families became friendly.

1. The appellant is married and has two children. The complainant spent some time with the appellant's children and the appellant's wife liked the complainant being with her children.

1. The complainant's evidence was that the appellant, his wife and two children slept in the main bedroom and, when the complainant stayed the night, the complainant slept on a mattress at the foot of the bed.

1. On one occasion in 2002, when the complainant was 12 years old and in Year 7 at school, the complainant and her family went to the appellant's home. The appellant was home at the time, as was his wife and their two children.

1. The complainant's family left and the complainant stayed the night. This, according to the complainant, was the only time in 2002 that the complainant slept at the appellant's house. The complainant testified that it was getting dark at the time they arrived. The complainant's father testified that it was lunchtime and that they all ate lunch together after which he and his wife left.

1. The complainant's evidence was that this occasion occurred over a weekend, when the weather was warm but cloudy and in the first part of the year, namely, between January and June. She denied, the assertion put to her, that, on this occasion, she first saw the appellant when he arrived home at 10.30pm

1. The complainant then gave evidence that she was sitting on the bed in the main bedroom putting the youngest child to sleep when the appellant entered the room and sat on the bed on the complainant's right-hand side. The appellant, it was said, grabbed the complainant on the arm and pulled her back onto the bed. At the time, the complainant was wearing pyjama pants and a T-shirt.

1. The appellant, on the evidence of the complainant, pulled down the complainant's pyjama pants and placed his hand inside her underpants. He said to her: "It's going to be okay". The appellant then placed one of his fingers in her vagina and moved it in and out. The complainant told him to stop, but he did not. Further the complainant says that she reached for his hand and tried to get it out, but the appellant told her that it would be okay. The complainant was scared and shocked.

1. With his other hand, the appellant grabbed the complainant's breast, first over and then underneath the T-shirt. The appellant cupped her breast and touched her nipples. This went on for less than a minute. The appellant then stopped what he was doing and left the room. The youngest child was asleep on the bed during this event.

1. The complainant went into the bathroom and cried. She pulled down her underpants and saw that they were wet but did not know why that was so. She cleaned herself up and, after a while, went back into the bedroom and saw the appellant's wife entering the room saying that she was going to go to sleep. The complainant then went to sleep.

1. The complainant disagreed that the appellant slept on the couch that night. The complainant maintained there were two beds in the room, on one of which the appellant's two children slept.

1. The complainant was collected by her parents the next morning. The appellant said nothing to them about the foregoing event and the complainant did not tell anyone what had happened because, according to her evidence, the complainant felt scared, ashamed and embarrassed. The complainant disagreed that the appellant had left the home early that morning.

1. A week after the foregoing incident, the complainant received a phone call on her mobile phone from the appellant. According to the complainant, the appellant said to her: "Do you like me, do you love me?... Do you think about what I did to you last time?" The complainant replied in the negative and hung up the phone.

1. A few months after the telephone call, the appellant approached the complainant while she was walking home from school with some friends. As the girls were walking through a park, the complainant saw the appellant at the driver's side of a white work van, which was parked in the car park. The appellant offered her a lift home. The complainant's friend enquired whether the complainant knew the appellant and the complainant told her that she did and not to worry.

1. In cross-examination, the complainant clarified that by using the term "a few months" she had intended to convey a period of about three months. The complainant disagreed that the appellant did not have a white van in 2002.

1. The complainant also gave evidence as to the facts alleged in Count 2. A couple of months after the incident in the park (which, if the earlier evidence were correct, would be approximately 5 months after the incident at the appellant's home), the complainant went to a restaurant for a birthday celebration with her family. The appellant and his family were also there. After they had eaten lunch, the complainant noticed that the appellant's daughter (the older child) was falling asleep. According to the complainant, she asked the appellant's wife whether she wanted her to take the daughter to the car for a nap, to which the appellant's wife agreed. Whereupon the complainant took the daughter to the car, put her in the child's seat in the back and the complainant sat in the front passenger seat.

1. After the complainant had been in the car for a little while, the appellant went outside and sat in the driver's seat of the car. He then put his hand on the complainant's leg and rubbed her thigh. The complainant told him to stop and to get off her. The child woke up; the appellant alighted the vehicle, removed the child from the car seat and returned to the restaurant.

1. The complainant testified that she had felt violated, embarrassed and that the appellant had taken advantage of her. In cross-examination the complainant stated that she had sat in the car for two or three minutes after the appellant had returned to the restaurant and that, when she finally left the car, she locked it and went back into the restaurant, giving the keys back to the appellant's wife who put them in her bag.

1. The complainant could not remember whose birthday celebration it was. Nor could she remember in which month the celebration had occurred.

1. On one particular day in 2004, when the complainant was 14 years old and in Year 9 at school, the complainant was at home, heard the intercom and answered it. The appellant asked to use the bathroom. The complainant said that the appellant informed her, through the intercom, that he had dropped off a customer, would come in and leave quickly. At the time the appellant worked as a taxi driver, according to the complainant.

1. On entering the unit, according to the complainant, the appellant went to the kitchen and, after an enquiry from the complainant as to the reason the appellant was in the kitchen, the appellant grabbed the complainant, and pushed her into the laundry against the washing machine. He then pushed her to the ground, put his hands down her pants and touched her vagina. According to the complainant, the appellant was in the squatting position while he was touching her vagina; he moved his finger in and out of her vagina; unzipped his pants and pulled out his penis. The appellant then, according to the complainant, grabbed the back of the complainant's head and tried to force it down towards his penis.

1. The appellant told the complainant that she would like it and that she should touch his penis with her hand. Her hand came into contact with the appellant's penis but she did not put her mouth on it. During this time, the appellant's finger was in the complainant's vagina and for some of the time the appellant was touching the complainant's breasts. The complainant stopped struggling; the appellant then got up, went back into the kitchen, stood there for a few moments and left the unit. The incident, it was said, lasted about 15 minutes. At the time, according to the complainant, she felt scared, terrified and helpless. She did not tell anyone about what happened that afternoon.

1. There was another incident in 2006 when the complainant was 16, turning 17. The appellant came to the complainant's home and the appellant let him in, because she felt overwhelmed. No assault occurred, but there was, according to the complainant, a discussion about what had happened in the past. In cross-examination, counsel put to the complainant that the visit in 2006 involved a conversation that was confined to the appellant asking if the complainant's father was home because he wanted to speak to him about some money that was owed. The complainant denied that this was the content, or even part of the content, of the conversation.

1. After the conversation the complainant locked the front door and called her boyfriend. About an hour later she went outside to go to the corner shop. On leaving her premises she saw a taxi and immediately ran back into the unit.

1. When the complainant's father came home that afternoon, the complainant told him of the incidents or some of them. He suggested she go to the police but she was afraid to do so and felt she was not up to it.

1. The complainant's father gave evidence confirming the discussion (albeit with slightly different timing) to which the complainant had attested as occurring in 2006. According to the father, this conversation occurred three years prior to the trial, namely, in about March 2007. Following that discussion the complainant's family saw less of the appellant and his family.

1. In May 2009, the complainant told both her parents about what the appellant had done to her. The complainant's father eventually telephoned the appellant and confronted him about what he had done to his daughter. The complainant's father told the appellant that the complainant had to apologise to his daughter and the appellant agreed.

1. A meeting was organised at which the appellant would apologise to the complainant according to Burmese custom. The apology ceremony occurred on 24 May 2009 at the home of the appellant's brother-in-law. Approximately 20 people were present, including the appellant, his wife and parents and the complainant and her parents. After the apology ceremony, according to the complainant's father, the appellant rang him, cried over the phone and said that the appellant's father had been nice to him and had helped him "to stay on the outside".

1. Objection was taken to the admission of the apology into evidence. The recording of the apology was not admitted, but the appellant's recollection of it to the police was part of the admissions of fact. There is no appeal against that decision. The apology was written in Burmese. The complainant understood only a few words but understood that the appellant was apologising and asking for forgiveness of the things that he had done. Both the appellant and complainant had to sign a written apology. The document was witnessed. Also tendered were photographs of the apology ceremony, during which the appellant knelt before the complainant in an act of contrition in order to seek forgiveness. After the apology ceremony, the complainant spoke to police for the first time. She made a statement on 25 June 2009.

1. Other evidence was adduced as to what occurred at the apology ceremony, which confirms the description given by the complainant.

1. Constable Stephens gave evidence of an interview with the appellant during which the appellant, through an interpreter and his solicitor, declined to answer questions in relation to the allegations made, but read out the apology letter that he had signed.

1. The appellant gave evidence and denied that the acts, as described by the complainant, took place. In relation to Count 1, the appellant said that he worked in a factory in 2002. His routine was to wake at 6.30am, to dress, pray and go to work at his factory. On the one occasion on which the complainant slept over at his place, the appellant testified that he returned home from work around 10.30pm at which time his wife told him that the complainant was staying. He grabbed a pillow and blankets and slept on the sofa.

1. The next morning he went to work, as usual, and returned at about 7.30pm, by which time the complainant had returned to her home.

1. The appellant denied telephoning the complainant one week later; denied picking her up from the park; and testified that he did not own a white van in 2002. The appellant bought a white van in 2003. Receipts for the purchase of a van were tendered to confirm that testimony.

1. As to the allegations giving rise to Count 2, the appellant testified that there was a celebration for the birth of his son on 2 November 2002. The complainant and her family attended that celebration. The appellant testified that he drove to the restaurant in a car; he kept the keys to the car in his pocket; and he did not any stage go to his car during the celebration to find, or be with, the complainant. Further, he did not see anyone take his daughter to the car for a nap or otherwise.

1. Lastly, the appellant denied going to the complainant's address at a time when she was alone. He commenced driving taxis in 2005, which is when he obtained his taxi licence. He denied touching the complainant as she alleged; he denied exposing his penis; and he denied grabbing her head and pulling it towards his penis.

1. The appellant gave evidence that in 2007 (as distinct from the time to which the complainant testified of 2006), that he went to the complainant's house when she was alone. He was wearing his taxi uniform. He went there to see the complainant's father about the money that had been borrowed and had not been repaid. (The complainant's father agreed that the appellant had lent him $10,000. On the father's testimony this was repaid in about 2004.)

1. The appellant gave evidence that he attended the apology ceremony. His wife had warned him that if he did not attend and apologise then she would leave him. After the ceremony his wife told him to call the complainant's father and apologise to him again, which he did.

1. Exhibit C in the proceedings is an admission of facts in which the appellant states that his understanding of the apology was that it was in or to the following effect:

"I, Zany Wong, today is the [sic] 24 May 2009, today is the date I am officially to apologise. I did like [sic] indecent physical abuse so I officially apologise. I apologise to [the complainant and her parents] for my indecent physical abuse."

1. Further, exhibit C repeats a question from a police officer during an interview to which the appellant answered "yes". The question, which was asked after the appellant had read aloud the apology document in the interview, was in the following terms:

"Mr Wong, do you agree that this is a letter that's signed by yourself, saying that as of today, the 24th May 2009 [sic], you plead for forgiveness for committing indecent physical abuse to [the complainant]"?

1. In cross-examination, the appellant testified that the complainant's father required him to apologise to his daughter. The appellant did not ask him, on his evidence, what he, the appellant, was supposed to have done. It was submitted that the appellant did not ask this question because he already knew what had occurred.

1. The appellant maintained that, when he attended the apology ceremony, he was not aware of that for which he was apologising and on being asked to sign the document, he was amazed that the document said he had committed an indecent assault. He agreed that he signed the document; and that he bowed down before the complainant to plead forgiveness for having indecently assaulted her.

1. The appellant's explanation was that he did this, not because the allegations were true or the statements were true, but because he had been pressured to do so by his wife. He also stated that he did not read the document because he had done nothing wrong. Nevertheless, the appellant agreed that the custom was to bow down only to a person in a position of respect and the ceremony that took place was unusual. The further conversation with the complainant's father was to thank him for forgiving him and occurred only because the father had led the appellant to believe that the matter had been reported to police.

1. The appellant's wife also gave evidence. As to Count 1, the appellant's wife originally stated that her younger child had not been born at the time that the complainant stayed at her place. Later she gave evidence that both children had slept on the other bed and other testimony inconsistent with her initial evidence.

1. The appellant's wife confirmed that her younger child was born on 16 September 2002 and confirmed that, in that year, the appellant owned a motor vehicle and not a white van. The appellant bought a white van in 2003. Further, the appellant's wife corroborated that the appellant commenced driving taxis in 2005.

1. Contrary to the appellant's evidence, his wife testified that the complainant stayed over in 2002 during the weekend and the appellant did not return from work that evening or go to work the next morning. Nevertheless, the appellant's wife testified that the appellant returned home from a delivery job at about 10.30pm and left early the next morning in order to shop.

1. She denied that he went to work, which was the evidence of the appellant. The appellant's wife also testified that the appellant returned home that day at about 3pm.

1. As to Count 2, the appellant's wife testified that her husband drove to the restaurant in the motor vehicle, not the van. She stated that her husband had retained the car keys and that the appellant and her mother in law helped with the children, not the complainant. The appellant's wife conceded that she had a second set of keys to the car, but they were not, on her evidence, with her at the restaurant. She also denied that the appellant left the table whilst they were at the restaurant.

1. The appellant's wife confirmed that she had required her husband to apologise under threat of divorce and a prohibition on him continuing to see his children. According to her testimony, the complainant's father kept the apology letter and threatened the appellant with incarceration, as a result of which she asked her husband to apologise again in the phone call that followed. The appellant's wife agreed that the appellant used the terms "letting him stay outside" in thanking the complainant's father for his forgiveness.

1. As earlier stated, the evidence was within short compass. Ultimately, the jury was faced with a stark choice between the version given by the complainant and the denials given by the appellant. Some of those denials depended upon independent facts, corroborated by his wife. On the complainant's evidence, the timing of Count 3 depended upon when the appellant commenced driving taxis. In the appellant's case he tendered his taxi licence which indicated that he commenced driving taxis in 2005. If that evidence were accepted, the events as described by the complainant must have occurred in or after 2005.

1. Otherwise, the case depends upon which of the two, the complainant or the appellant, should be believed. In aid of that decision is the apology given by the appellant. The apology, as was made clear by the trial judge in his summing up, does not corroborate the timing or details of any of the charges, but does render the denials by the appellant less persuasive.

Principles on Appeal

1. The grounds upon which an appeal may be allowed include that the conviction is "unreasonable, or cannot be supported, having regard to the evidence": s 6(1) of the Criminal Appeal Act 1912. That ground involves a question of fact and not a "question of law alone": M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 492; Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318; Alramadan v Director of Public Prosecutions (NSW) [2007] NSWCCA 322. Section 5(1) of the Criminal Appeal Act provides for an appeal against conviction as of right "on any ground which involves a question of law alone". Otherwise, leave to appeal is required.

1. The appellant did not seek leave to appeal. Parties and legal practitioners are on notice, and have been for some years, that leave to appeal is necessary except where the ground of appeal on which a party relies involves a question of law alone. This matter was not the subject of argument before the Court. Given the nature of the argument and matters raised, I would be minded to grant leave.

1. The High Court has on a number of occasions stated the principles that should be applied in dealing with an allegation that the verdict of the jury is unreasonable or cannot be supported by the evidence: see M v The Queen (supra); Jones v The Queen (1997) HCA 56; 191 CLR 439; MFA v The Queen [2002] HCA 53; 213 CLR 606; SKA v The Queen [2011] HCA 13; 243 CLR 400.

1. The question to be answered is not the same as whether, as a matter of law, there was evidence to support the verdict. This Court on appeal must review the whole of the evidence available to the jury and determine whether it has a doubt, after the review of that evidence, that the accused was guilty, which doubt it is not resolved by the jury's advantage in seeing and hearing the evidence. The question that this Court must answer is whether the evidence satisfies the Court beyond reasonable doubt, not simply whether there is evidence of every element necessary to prove guilt.

Conclusion

1. Clearly, there is evidence of every element necessary to prove guilt on each of the relevant charges. But that is not the question.

1. I have read the transcript, including the extract of the transcript of the "first trial", being the evidence of the complainant. I have also examined the exhibits in the trial. I have not watched the recording of the complainant's evidence, because it would give preponderance to that evidence over the evidence of the appellant.

1. I reiterate my comments in Brendon Singh v The Queen [2011] NSWCCA 100, in which I said:

"132 A great many criminal cases depend upon which of two versions is accepted, often in circumstances where it is the word of the alleged victim against the word of the alleged perpetrator. That one witness's evidence is accepted and another witness's evidence rejected, of itself, and without independent evidence or some other factor affecting that assessment, cannot be a basis upon which a jury verdict is necessarily rendered unreasonable. The same is true of a body of evidence, from more than one witness.

...

137 The reading of a transcript is not usually as effective as hearing and seeing witnesses.

...

139 For my own part, having read the evidence, I do not have a doubt of a kind that would warrant the setting aside of the verdict. Theoretically, it is always reasonably possible that a person is lying, or, alternatively, telling the truth, but, in this case, the determination of truthfulness and reliability derives from just the kind of advantage that a jury has in seeing and hearing the evidence and to which the High Court referred in M v R , supra, at 494, recited above."

1. As earlier stated, the jury was faced with a stark choice. The terms of the apology suggest that the appellant was not being truthful in his denial of the events in question. The appellant's wife, while supporting the appellant's version of events in a number of respects, also corroborates a number of aspects of the complainant's evidence.

1. The one issue upon which there is clear independent evidence is the date upon which the appellant was licensed to commence driving taxis. That date was in 2005 and after the time said by the complainant to be when incident the subject of Count 3 occurred. In his summing-up, the primary judge said:

"What is said in each of the counts on the Indictment is that between two dates, 1 January, 2002 and 27 December, 2002 for both Count 1 and Count 2 and between 1 January, 2004 and 27 December, 2004 for Count 3 that between those times the Crown says the events the complainant gave evidence about occurred. Now that date range is an ingredient of the offence. So that if you cannot be satisfied beyond reasonable doubt that the offence occurred between those dates, then you must find the accused not guilty. It is not a question of saying well the Crown has not proved that it happened between those dates, but we are pretty sure it happened outside those dates, the Crown has to prove that they occurred between those specific dates and if they cannot prove that, you must find the accused not guilty."

1. It seems clear that the jury has believed the complainant on all issues except the timing associated with Count 3. In that respect the verdict is consistent with the jury accepting her evidence that the appellant was wearing a taxi uniform but rejecting her evidence as to the year in which it occurred. As a consequence, the jury has returned a verdict of guilty on the first two counts and not guilty on the third.

1. There is nothing inconsistent in those verdicts. Moreover, having examined the evidence at length, I would take the same view. I have no doubt of the requisite kind that would warrant this Court interfering with the jury's verdict. I propose that the Court make the following orders:

(1) Leave to appeal granted;

(2) Appeal dismissed.

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Decision last updated: 05 April 2012