Loading...
Queensland Judgments

beta

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

R v TAI

 

[2018] QCA 282

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

R v TAI [2018] QCA 282

PARTIES:

R
v
TAI
(appellant)

FILE NO/S:

CA No 133 of 2017

DC No 71 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Cairns – Date of Conviction: 25 May 2017 (Smith DCJ)

DELIVERED ON:

19 October 2018

DELIVERED AT:

Brisbane

HEARING DATE:

3 May 2018

JUDGES:

Morrison and Philippides JJA and Bowskill J

ORDER:

The appeal against conviction is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where the appellant was convicted of two counts of indecent treatment of a child under 16 (counts 1 and 3), two counts of rape (counts 2 and 4) and two counts of indecent treatment of a child under 16 under care (counts 7 and 8) – where the appellant was acquitted of one count of indecent treatment of a child under 16 (count 5) and a nolle prosequi was entered on another count of indecent treatment of a child under 16 (count 6) – where counts 1 to 4 were alleged to have occurred on one occasion, counts 5 and 6 on another occasion and counts 7 and 8 on a further occasion – where count 5 was initially particularised as the appellant touching the complainant’s breasts and later amended to the appellant kissing the complainant – whether the verdicts of guilty were unsafe and unsatisfactory on the basis of inconsistency with the acquittal on count 5

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – TEST TO BE APPLIED – where the complainant gave two video recorded statements and one handwritten document pursuant to s 93A of the Evidence Act 1977 (Qld) and participated in a pre-recorded hearing pursuant to s 21AK of the Evidence Act 1977 (Qld) – where the complainant made a preliminary complaint in relation to counts 1 to 4 and counts 5 and 6 to one of her cousins who gave evidence at trial – where the complainant made a preliminary complaint in relation to counts 5 and 6 to another cousin who participated in a s 93A video recorded interview – where the complainant made a preliminary complaint in relation to counts 7 and 8 to her boyfriend, at the time, who gave evidence at trial and who allegedly, after the appellant’s conviction, told that he was forced to give evidence for a family conspiracy – where the appellant denied having sexual contact with the complainant – whether in all the circumstances the verdicts of guilty were unreasonable and cannot be supported by the evidence

Criminal Code (Qld), s 668E

Evidence Act 1977 (Qld), s 21AK, s 93A

Gately v The Queen (2007) 232 CLR 208; [2007] HCA 55, cited

GAX v The Queen (2017) 91 ALJR 698; [2017] HCA 25, applied

Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56, applied

Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, applied

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied

MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, applied

MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, applied

Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50, applied

Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75, cited

R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, applied

R v CX [2006] QCA 409, applied

R v DAX [2010] QCA 221, cited

R v HBJ [2014] QCA 2, cited

R v Latsamyvong [2017] QCA 174, cited

R v McLucas [2017] QCA 262, cited

R v MCQ [2018] QCA 160, cited

R v MCT [2018] QCA 189, cited

R v Smith [2014] QCA 315, cited

R v Stone, unreported, Court of Criminal Appeal, Devlin J, 13 December 1954, cited

R v Taylor [2017] QCA 169, cited

SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, applied

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

  1. [1]
    MORRISON JA:  I agree with the reasons of Philippides JA and the order her Honour proposes.
  2. [2]
    PHILIPPIDES JA:  The appellant was charged on an eight count indictment which alleged offences relating to three separate occasions; counts 1 to 4 were alleged to have occurred on the first occasion, counts 5 and 6 on the second occasion and counts 7 and 8 on the third occasion.
  3. [3]
    On 25 May 2017, the appellant was convicted by a jury of counts 1 to 4, being two counts of indecent treatment of a child under 16 (counts 1 and 3) and two counts of rape (counts 2 and 4) and two counts of indecent treatment of a child under 16 under care (counts 7 and 8).  The appellant was acquitted of count 5, a count of indecent treatment of a child under 16.  A nolle prosequi was entered on count 6, a further count of indecent treatment of a child under 16, following a no case submission.
  4. [4]
    The appellant appeals his convictions on the grounds that:
    1. The verdicts of guilty on counts 1 to 4, 7 and 8 are inconsistent with the verdict of not guilty on count 5.
    2. The verdicts of guilty are unreasonable or cannot be supported having regard to the evidence.

The evidence

The complainant’s evidence

  1. [5]
    The complainant was born on 26 March 1999[1] and is the daughter of the appellant’s first cousin,[2] and she was also a member of the appellant’s congregation of the Cook Islands Christian Church.  The complainant gave two s 93A Evidence Act 1977 (Qld) (the Act) video recorded statements and one s 93A hand written document, which recounted offending over the three distinct occasions the subject of the eight count indictment.
  2. [6]
    During the trial, the video recordings of the complainant were played to the jury.[3]  The handwritten s 93A statement was read to the jury and admitted as an exhibit and provided to the jury during the course of the trial and deliberations by consent.[4]  No application was made under s 99 of the Act for the statement to be withdrawn from the jury room during deliberations.  The trial judge did not give the jury a warning against the risk of giving the handwritten statement disproportionate weight.[5]
  3. [7]
    The pre-recorded s 21AK hearing was played to the jury.[6]  The complainant, in cross examination at the hearing, disagreed when it was suggested to her that the three incidents did not occur as she described.[7]

Counts 1 to 4 (the first occasion)

  1. [8]
    Counts 1 to 4 were particularised as follows:
  • Count 1 – the appellant touched the complainant’s breasts;
  • Count 2 – the appellant penetrated the complainant’s mouth with his penis;
  • Count 3 – the appellant touched the complainant’s breasts; and
  • Count 4 – the appellant penetrated the complainant’s vagina with his penis.
  1. [9]
    Counts 1 to 4 were alleged to have occurred over a weekend in 2011, during the school term.  The complainant gave evidence that she was walking through the back yard of the appellant’s house at Y at about 3.00 or 4.00 pm to access a shortcut to get to her cousin T’s house.[8]  The appellant pulled the complainant inside the house, into the bedroom belonging to the appellant’s son, he then pushed her onto the bed and closed the door.[9]  The appellant pulled her pants down, lifted her shirt up and started touching the complainant by squeezing her breasts (count 1).[10]  The appellant pulled his pants down and forced the complainant to perform oral sex on him (count 2).[11]  The appellant then pulled the complainant’s legs apart and had sexual intercourse with her which was painful (count 4).[12]  The complainant said she kicked the appellant off.[13]  The complainant then started crying, clothed herself and ran outside.[14]  The appellant followed her but had to stop because his daughter started crying.
  2. [10]
    Only the appellant and his newborn daughter were home at the time.[15]  The appellant did not use a condom.[16]  The complainant did not know whether the appellant ejaculated or not.[17]  The complainant told M (another cousin) about this incident in 2013 in her uncle’s green car outside the complainant’s house at Mount Q.[18]
  3. [11]
    In the complainant’s handwritten s 93A statement, the complainant stated that the appellant touched her breasts and kissed her after she performed oral sex on him and before the appellant engaged in sexual intercourse with her (count 3).[19]

Counts 5 and 6 (the second occasion)

  1. [12]
    Count 5 was initially particularised as the appellant touching the complainant’s breasts[20] but was amended to the appellant kissing the complainant.[21]  Count 6, particularised as the appellant touching the complainant’s vagina,[22] was, as mentioned, the subject of the nolle prosequi.[23]
  2. [13]
    The complainant gave evidence of a second occasion which occurred at a funeral ceremony at the church at Mount Q at about 7.00 or 8.00 pm in 2011,[24] when the complainant was playing “tiggy” with her cousin outside the hall.  The appellant told her to go to his van, which she did and the appellant opened the boot and told her to sit down, which she also did.[25]  The appellant then grabbed the complainant from behind her head and forced her head towards him to kiss her on the mouth (amended count 5).[26]  The complainant saw the appellant’s son walk around the corner and pushed the appellant away and ran.[27]  Before the complainant pushed the appellant, he gave her $10.[28]  The appellant’s son approached the complainant and asked what had happened.  The complainant told him.[29]  The complainant also told her older cousin, T (a niece of the appellant),[30] what happened shortly after.[31]

Counts 7 and 8 (the third occasion)

  1. [14]
    Counts 7 and 8 were particularised as touching the complainant’s breasts (count 7) and touching her in the area of her genitals (count 8).
  2. [15]
    The complainant gave evidence of an occasion in 2013 at a bible study class at the appellant’s house.[32]  At about 9.00 or 10.00 pm, during a break, the complainant went to the toilet.  The complainant said the appellant grabbed her by the shoulders and pushed her against a wall and that he started touching her private parts on the outside of her clothing (count 8).  She said the appellant was kissing her on the lips.[33]  (She made no mention of the appellant touching her breasts, which were the particulars of count 7).  In the s 93A video recording, the complainant clarified where the appellant touched her by pointing in the region of her genitals.  The appellant told the complainant to meet him at the IGA the next day because he was leaving for Sydney but the complainant did not.[34]  The complainant tried to push the appellant away.[35]  The complainant returned to the group and was crying.[36]  The complainant told her cousin that she wanted to go home.[37]  The complainant disclosed to her cousin, M, her cousin, U, the appellant’s son, and the complainant’s boyfriend, TK, what had occurred with the appellant.[38]  The complainant’s cousin, M, called her mother, who then arrived and took her and the complainant home.[39]

Evidence of the complainant’s boyfriend

  1. [16]
    TK gave evidence at the trial that he was the complainant’s boyfriend in 2012.  He recalled attending bible study classes with the complainant.[40]  During evidence in chief, the trial judge granted an unopposed application to declare the witness hostile to allow the Crown Prosecutor to cross examine the witness on parts of his statement to police.[41]  TK then accepted that he told police that he had seen the complainant running from the house at some stage and found her crying in a park on a swing.[42]  He also agreed that he told police that, during the school holidays in December 2013, the complainant had told him that the appellant grabbed her and forced her down on the bed and raped her.[43]

Evidence of the complainant’s cousin

  1. [17]
    M, who is the complainant’s cousin, gave evidence of an occasion when she was at the church for a funeral and the complainant ran towards her, scared and shaking, and said that the appellant “touched her” on the “boobs and down there”.[44]  The complainant also said that the appellant tried kissing her but she moved her face.[45]  The complainant said that this happened in the boot of the van.[46]

Evidence of T

  1. [18]
    The s 93A video recorded interview of the complainant’s cousin, T, was also played to the jury.[47]  T’s evidence was that the complainant visited her at her house either in the morning or afternoon before the funeral and asked her if she wanted $10.  The complainant told her that the appellant had “touched her or did something to her” last night.[48]  The complainant said it happened at the back of the appellant’s house and T reprimanded the complainant for taking the shortcut.[49]  The previous evening, the complainant and the witness had looked after the children at the park while preparations were being made for the funeral.[50]  The complainant seemed scared.[51]

Defence evidence

  1. [19]
    The appellant gave evidence, as did his wife.  The appellant had been a pastor with the church in Cairns since 2003.[52]  As part of his role, the appellant conducted bible studies weekly at either the hall of the church or his house.[53]  The sessions were for two hours with a break in the middle to have something to eat and drink.[54]
  2. [20]
    The appellant did not usually have any money.[55]  The appellant had several children.  After the appellant’s infant daughter was born in May 2011, the appellant enrolled in university and was attending every day.[56]  A typical weekday for the appellant involved him dropping the other children off at childcare and school and then attending university.  In the afternoon, he would pick the children up and return home.[57]  The appellant’s wife would stay at home to look after their infant daughter.[58]  Typically, on weekends and school holidays, the family visited the appellant’s parents, spent the day at P, or visited the E.[59]
  3. [21]
    The appellant denied having ever had any sexual contact with the complainant.[60]  The appellant specifically denied taking hold of the complainant when she was taking a shortcut through his yard and engaging in any sexual contact with her.[61]
  4. [22]
    The appellant said that a funeral ceremony from 20 to 24 June 2011 was held for his aunt at the church at Mount Q.[62]  The appellant denied having any sexual contact with the complainant over that period.[63]
  5. [23]
    The appellant said that he travelled four times to Sydney in 2011 for church and private business.[64]  The appellant had conducted bible study sessions at his house but denied having any sexual contact with the complainant during them.[65]
  6. [24]
    In cross examination, the appellant said that he had eight hours a week of lectures but needed to attend university every day to conduct research.[66]  The appellant said that his wife never left the house on weekdays.[67]  The appellant said he never had a moment to slip out to his car over the period of the funeral ceremony.[68]  In re-examination, the appellant clarified that he did not have a computer at home, requiring him to use the university computers for study, and that he also attended a tutorial for each subject at the university.[69]
  7. [25]
    The appellant’s wife gave evidence confirming that she looked after their newborn daughter following her birth.[70]  The appellant’s wife said that she stayed at home mostly, only leaving the house to apply for Centrelink benefits with the appellant.[71]  The appellant’s wife was also an ordained minister.[72]  She confirmed that on the weekends they would travel to P and the E as a family.[73]  She denied that there was ever an occasion in which she left her daughter in the care of the appellant at their house.[74]  The appellant’s wife denied ever seeing the appellant leave his chair in the hall during the funeral ceremony.[75]  The appellant’s wife said during the break for bible studies sessions, the appellant would talk to the people who attended.[76]
  8. [26]
    In cross examination, the appellant’s wife accepted that the appellant attended the university most days, but not every day in 2011.[77]  The appellant’s wife did not have an eye on the appellant the entire time he was in the hall at the funeral ceremony.[78]  The appellant’s wife did not recall the appellant leaving the members of the bible studies sessions during the breaks.[79]

Amendment of count 5 and nolle prosequi in respect of count 6

  1. [27]
    The particulars for counts 5 and 6 did not accord with the evidence of the complainant in her s 93A statements or her evidence at the s 21AK hearing.  As mentioned, at the conclusion of the Crown case, following an application by the appellant’s counsel regarding those counts and a cross application by the Crown, the trial judge granted leave to the Crown to amend the particulars for count 5 to kissing the complainant.  The Crown entered a nolle prosequi in relation to count 6.[80]

The trial judge’s summing up

  1. [28]
    The trial judge summed up the case to the jury and gave directions as discussed and agreed with counsel, with the exception that, contrary to his Honour’s indication during submissions, his Honour did not give a direction about the editing of the police interviews.[81]  However, at the conclusion of the summing up, neither counsel made an application for redirections.[82]
  2. [29]
    The jury retired to deliberate at 12.05 pm on 25 May 2017 and returned their verdicts at 3.01 pm the same day.

Ground 1 - Inconsistent verdicts

Summary of the appellant’s submissions

  1. [30]
    The appellant submitted that there was a miscarriage of justice and his convictions should be set aside on the basis that the verdicts were unreasonable, relying primarily on the following.  It was unreasonable that the jury convicted the appellant on counts 1 to 4 from the complainant’s evidence, because the complainant did not give any evidence of “rebelling”, shouting for help or running away.  The appellant submitted that the lack of any such evidence from the complainant, demonstrated that the offences did not occur.  The appellant also submitted that the complainant and T fabricated their evidence and concocted a story in relation to counts 1 to 4, and their motives for doing so was as a joke.  The passage of four years between the offending and the complainant reporting to police impacted the credibility of the complainant and of T.
  2. [31]
    Specific submissions were made as to count 2 that the complainant did not give any evidence of her vagina bleeding, being torn, infected or damaged, and she did not attend a medical examination.  The appellant submitted that the lack of any such evidence raised doubt as to the occurrence of the offence as alleged.  It was unreasonable for the jury to convict the appellant without any DNA evidence, fingerprint evidence, saliva samples or medical examination evidence.
  3. [32]
    Further, there was no evidence on which the jury could convict on count 7 and it was unreasonable that the jury convicted the appellant on count 8 as the evidence of TK (who the complainant had made a preliminary complaint to in relation to counts 7 and 8) was not credible as he had been dating the complainant at the time, and TK had allegedly since admitted to the appellant that he was forced to give the evidence at trial and that it was a family conspiracy.

Applicable principles

  1. [33]
    The first ground of appeal raises the issue of whether the verdicts of guilty on the counts on which he was convicted were unsafe and unsatisfactory on the basis of inconsistency with the acquittal on count 5.  The question for determination, bearing in mind the test in M v The Queen,[83] is whether, given the jury’s verdict of not guilty on count 5, it was open to the jury, on the whole of the evidence, to be satisfied beyond reasonable doubt of the guilt of the appellant on the counts on which he was convicted.[84]  The relevant principles were summarised in R v GAW,[85] by reference to MacKenzie v The Queen,[86] as follows:

The principles concerning inconsistent verdicts are well-established.[87]  Where alleged inconsistency arises in the jury verdicts upon different counts affecting an accused, the test is one of “logic and reasonableness”; that is, whether the party alleging inconsistency has satisfied the court that the verdicts cannot stand together because “no reasonable jury, who had applied their mind properly to the facts in the case could have arrived” at them.[88]

However, respect for the jury’s function results in a reluctance in appellate courts accepting a submission that verdicts are inconsistent in the relevant sense, so that:[89]

‘... if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted.  If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury.’

In that regard, “the view may be taken that the jury simply followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt”.[90]  Alternatively, the appellate court may conclude that the jury took a merciful view of the facts on one count; a function which has always been open to a jury.[91]

It is only where the inconsistency rises to the point that the appellate court considers intervention is necessary to prevent possible injustice that the relevant conviction will be set aside.[92]  While it is impossible to state hard and fast rules, the following provide examples of relevant inconsistency;[93] where the different verdicts returned by the jury are an affront to logic and common sense which is unacceptable, and strongly suggests a compromise in the performance of the jury’s duty, or which suggests confusion in the minds of the jury, or a misunderstanding of their function, or uncertainty about the legal difference between specific offences, or a lack of clarity in the instruction on the applicable law.

In R v CX,[94] Jerrard JA, referring to Osland v The Queen,[95] stated:

Verdicts of guilty and of acquittal will show the required inconsistency where a verdict of acquittal necessarily demonstrates that the jury did not accept evidence which they had to accept before they could bring in the verdict or verdicts of guilty which they did; or when it follows that when acquitting on a particular count, the jury must have accepted evidence that required them to acquit on a count or counts on which they convicted the defendant.’”

Consideration

  1. [34]
    The verdict of acquittal by the jury on count 5 is capable of being reconciled with the other verdicts and is not an affront to logic and common sense.  In relation to count 5, while the evidence of the complainant did not change, the particulars alleged by the Crown changed during the course of the trial from the appellant touching the complainant’s breasts to kissing the complainant on the mouth.  The Crown also alleged a further count to cover alleged touching by the appellant of the complainant’s vagina, count 6, which was also not alleged by the complainant in her s 93A statements or at the s 21AK hearing.  The Crown withdrew that count from the jury’s consideration at the end of the Crown case.  The changing particulars of the offence could reasonably have caused the jury doubt.
  2. [35]
    The preliminary complaint of the complainant to T was in terms of an attempt to kiss not an actual kiss so it was not entirely consistent with the complainant’s evidence.  The appellant’s counsel directed the jury’s attention to that inconsistency.  Further, the evidence of T was that the complainant also claimed that the appellant touched her breasts and genitals on this occasion, which was not consistent with the complainant’s evidence as discussed above.  The jury’s acquittal of the appellant on this count merely serves to demonstrate their independent consideration of the evidence in relation to each of the counts in accordance with the directions they were given.

Ground 2 – The verdicts of the jury were unreasonable or unsupported by the evidence

Principles

  1. [36]
    The ground of appeal against conviction agitated before this Court is to be regarded as a contention pursuant to s 668E of the Criminal Code (Qld) that the verdicts of guilty of the counts of which the appellant was convicted were unreasonable and cannot be supported by the evidence.
  2. [37]
    The approach of an appellate court where such a ground is raised may be summarised having regard to the High Court authorities as follows:
    1. The question which an appellate court must ask itself is whether it considers that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the defendant was guilty: M v The Queen[96] and MFA v The Queen.[97]
    2. Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is ‘unreasonable’ is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.  The boundaries of reasonableness within which the jury’s function is to be performed should not be narrowed in a hard and fast way: R v BadenClay.[98]
    3. In most cases, a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.  In such a case of doubt, it is only where a jury’s advantage in seeing and hearing the evidence can explain the difference in conclusion as to guilt that the appellate court may conclude that no miscarriage of justice occurred: MFA v The Queen.[99]
    4. If the evidence contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court 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: M v The Queen[100] and MFA v The Queen.[101]
    5. The ultimate question for the appellate court must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty: R v BadenClay.[102]  In determining that question, this Court must undertake its own independent assessment of the evidence, both as to its sufficiency and quality: Morris v The Queen[103] and SKA v The Queen.[104]  In doing so, the Court must disclose the manner of that assessment: GAX v The Queen.[105]

Consideration

  1. [38]
    The jury were directed to consider all of the counts separately and to carefully scrutinise the evidence of the complainant.  As the respondent submitted, the fact that the evidence of the complainant was only capable of being corroborated by her distressed condition, if the jury accepted that evidence, was carefully outlined by the trial judge to the jury.  However, the jury did not have to accept the evidence of distressed condition to convict.  Nor does the absence of the various categories of evidence identified by the appellant in his outline render the conviction unreasonable or unsupported by the evidence.
  2. [39]
    The appellant’s counsel drew to the jury’s attention matters of inconsistency as to the preliminary complaint regarding counts 5 and 6.  The potential inconsistency of the terms of the preliminary complaint to T regarding counts 1 to 4 were also raised by the trial judge for the jury’s consideration.  Further, as the respondent submitted, the complainant’s evidence was consistent between her s 93A statements.  Her cross examination was limited to putting the appellant’s case to the witness and did not give rise to any inconsistencies.  The preliminary complaint to TK regarding the first incident was consistent with the complainant’s evidence and capable of bolstering her credit.
  3. [40]
    The respondent, quite properly raised the issue of whether there was an evidential basis upon which the jury could convict the appellant of count 7 as particularised in those terms.  The complainant gave evidence in relation to the third incident that the appellant touched her in the region of her genitals and kissed her on the mouth at the same time.  The former was the subject of count 8 on the indictment.  The latter was not indicted as an offence nor the subject of a sexual interest direction.  The particulars provided for count 7, which was indicted as part of this incident, however, were that the appellant touched the complainant’s breasts.  If the evidence was confined to being kissed, it would be insufficient to support count 7 as particularised and the verdict of guilty with respect to count 7 could not stand.[106]  That was, however, not the case.  Evidence was given by the complainant to support the offence as particularised that the appellant had touched the complainant’s breasts.  In particular, in the s 93A interview the complainant referred to being touched “below here” while also gesturing to her body in a general way.[107]  Furthermore, she gave cross examination evidence disputing the proposition put to her that she was not touched on her breasts.[108]  No nolle prosequi was entered by the prosecution nor was a no case submission made by the defence.
  4. [41]
    The delay in making a complaint and the prejudice thereby suffered by the appellant was the subject of a Longman direction.[109]  The evidence of the appellant and the appellant’s wife was predominantly directed to negating opportunity to commit the offences and was not compelling.  The jury were entitled to have concluded it did not provide a satisfying answer to the prosecution case.  There was no evidence of any alleged conspiracy on the part of the complainant or any other person against the appellant to fabricate and maintain a false complaint against him.
  5. [42]
    Taking the whole of the evidence into account, in my view, it was open to the jury to be satisfied beyond a reasonable doubt of the appellant’s guilt of each of the offences of which he was convicted.

Orders

  1. [43]
    I would order that the appeal against conviction is dismissed.
  2. [44]
    BOWSKILL J:  I agree with Philippides JA.

Footnotes

[1]AB at 296.31; 181.

[2]AB at 82.36.

[3]AB at 49.24-50.20; 58.3-42.

[4]AB at 60.41-61.21; 64.45-47.

[5]Gately v The Queen (2007) 232 CLR 208 at 232-234; R v HBJ [2014] QCA 2 at [30]-[33]; R v Smith [2014] QCA 315 at [25]-[35]; and R v Taylor [2017] QCA 169 at [15]-[31].

[6]AB at 59.29-60.22.

[7]AB at 304.20-41.

[8]AB at 209.37-41; 210.53-211.25; 213.10-14; 246.28.

[9]AB at 209.47-50; 214.1.

[10]AB at 209.50-51; 216.7-35.

[11]AB at 209.54-55.

[12]AB at 210.10-16; 222.30-40; 259.35-39.

[13]AB at 224.6-8.

[14]AB at 210.20-26.

[15]AB at 210.26-30; 213.48.

[16]AB at 263.36-37.

[17]AB at 264.27-28.

[18]AB at 267.59-268.10; 272.10-20.

[19]AB at 177.

[20]AB at 67.35-36.

[21]AB at 69.3.

[22]AB at 67.36-37.

[23]AB at 69.3-4.

[24]AB at 274.20-25; 274.38-55.

[25]AB at 280.29-35.

[26]AB at 283.1-25; 46.

[27]AB at 272.46-53; 284.29.

[28]AB at 285.30-286.25.

[29]AB at 286.45-59.

[30]AB at 56.13.

[31]AB at 273.45-46.

[32]AB at 198.45-53.

[33]AB at 198.56-199.4; 203.59; 204.15; 206.8-30.

[34]AB at 199.4-6; 205.56-206.2.

[35]AB at 204.28-30.

[36]AB at 199.10-11.

[37]AB at 199.15-16.

[38]AB at 199.20-200.19.

[39]AB at 200.31-32.

[40]AB at 43.41-44.

[41]AB at 45.10-46.25.

[42]AB at 47.29.

[43]AB at 48.16-19.

[44]AB at 56.15-57.21.

[45]AB at 57.29-30.

[46]AB at 57.31-35.

[47]AB at 64.35.

[48]AB at 313.1-8; 316.45-50; 318.30-31.

[49]AB at 318.35-39.

[50]AB at 319.15-51.

[51]AB at 317.27-29.

[52]AB at 79.23-25.

[53]AB at 81.42-82.12.

[54]AB at 82.18-21.

[55]AB at 84.34.

[56]AB at 85.32-37.

[57]AB at 85.40-86.17.

[58]AB at 86.19-25.

[59]AB at 86.34-87.28.

[60]AB at 82.45.

[61]AB at 83.3-18.

[62]AB at 90.18-91.35.

[63]AB at 92.40-43.

[64]AB at 93.21-94.31.

[65]AB at 94.33-35; 96.11-22.

[66]AB at 98.43-99.16.

[67]AB at 98.32-34.

[68]AB at 100.44-45.

[69]AB at 102.43-103.23.

[70]AB at 109.4-5.

[71]AB at 109.7-12.

[72]AB at 110.1.

[73]AB at 127.4-127.10.

[74]AB at 129.13-19.

[75]AB at 129.23-38.

[76]AB at 130.11-15.

[77]AB at 132.33-36.

[78]AB at 135.6-8.

[79]AB at 130.1-130.21.

[80]AB at 67-75.

[81]AB at 114.26-27.

[82]AB at 169.7-13.

[83](1994) 181 CLR 487 at 493-494.

[84] See Jones v The Queen (1997) 191 CLR 439 at 450-452 and at 455 (per Gaudron, McHugh and Gummow JJ).

[85][2015] QCA 166 at [19]-[23]; applied in R v Latsamyvong [2017] QCA 174 at [152]; R v McLucas [2017] QCA 262 at [65]; R v MCQ [2018] QCA 160 at [82]; R v MCT [2018] QCA 189 at [107].

[86](1996) 190 CLR 348.

[87]See MacKenzie v The Queen (1996) 190 CLR 348 at 366-368 (per Gaudron, Gummow and Kirby JJ).

[88]MacKenzie v The Queen (1996) 190 CLR 348 at 366 (per Gaudron, Gummow and Kirby JJ) quoting R v Stone (unreported, 13 December 1954) per Devlin J.

[89]MacKenzie v The Queen (1996) 190 CLR 348 at 367 (per Gaudron, Gummow and Kirby JJ) (citations omitted).

[90]MacKenzie v The Queen (1996) 190 CLR 348 at 367 (per Gaudron, Gummow and Kirby JJ) (citations omitted).

[91]MacKenzie v The Queen (1996) 190 CLR 348 at 367 per Gaudron, Gummow and Kirby JJ.

[92]MacKenzie v The Queen (1996) 190 CLR 348 at 368 per Gaudron, Gummow and Kirby JJ.

[93]MacKenzie v The Queen (1996) 190 CLR 348 at 368 per Gaudron, Gummow and Kirby JJ.

[94][2006] QCA 409 at [33].

[95](1998) 197 CLR 316 at 356-357 per McHugh J.

[96](1994) 181 CLR 487 at 493.

[97](2002) 213 CLR 606 at 615.

[98](2016) 258 CLR 308 at [65]-[66] per French CJ, Kiefel, Bell, Keane and Gordon JJ.  See also M v The Queen (1994) 181 CLR 487; MFA (2002) 213 CLR 606.

[99](2002) 213 CLR 606 at 623.

[100](1994) 181 CLR 487 at 494-495.

[101](2002) 213 CLR 606 at 623.

[102](2016) 258 CLR 308 at [65]-[66] per French CJ, Kiefel, Bell, Keane and Gordon JJ.  See also M v The Queen (1994) 181 CLR 487; MFA (2002) 213 CLR 606.

[103](1987) 163 CLR 454 at 473.

[104](2011) 243 CLR 400 at 406.

[105](2017) 91 ALJR 698 at [25].

[106]R v DAX [2010] QCA 221 at [43]-[45].

[107]AB at 205-206.

[108]AB at 25.

[109]Longman v The Queen (1989) 168 CLR 79.

Close

Editorial Notes

  • Published Case Name:

    R v TAI

  • Shortened Case Name:

    R v TAI

  • MNC:

    [2018] QCA 282

  • Court:

    QCA

  • Judge(s):

    Morrison JA, Philippides JA, Bowskill J

  • Date:

    19 Oct 2018

Litigation History

No Litigation History

Appeal Status

No Status