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- Unreported Judgment
SUPREME COURT OF QUEENSLAND
R v TAN  QCA 64
CA No 94 of 2019
DC No 2767 of 2017
Court of Appeal
Appeal against Conviction
District Court at Brisbane – Date of Conviction: 10 May 2018 (Dick SC DCJ)
Date of Orders: 3 April 2020
Date of Publication of Reasons: 7 April 2020
16 March 2020
Fraser and McMurdo JJA and Callaghan J
Orders delivered: 3 April 2020
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of two counts of rape of his seven year old daughter – where the appellant submitted that if there had been digital and penile penetration as the complainant said in evidence there should be some evidence of minor and major injuries – where there was a doctor’s report in evidence which stated that an examination of the complainant “neither confirms, nor refutes the allegations as reported to police” – where the appellant submitted that the complainant’s mother coached her in the evidence she should give – where the appellant submitted that it was not likely the alleged offending occurred in a small house while the complainant’s grandmother was present in the house – whether it was reasonably open to the jury to be satisfied beyond reasonable doubt upon the whole of the evidence that the appellant was guilty of the offences
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant’s first language was Kirundi – where an order was made in the District Court appointing an interpreter to interpret the English language proceedings at the trial into Kirundi for the appellant – where the appellant was said by his counsel at trial to be “reasonably competent in English” – where the appellant indicated he could understand “little bit” or “half-half” of what was being said – where the interpreter was not present in the courtroom on the second day of the trial – whether the absence of the interpreter occasioned a miscarriage of justice – whether the verdicts were therefore unsafe or unsatisfactory and should be quashed
Ebatarinja v Deland (1998) 194 CLR 444;  HCA 62, applied
M v The Queen (1994) 181 CLR 487;  HCA 63, distinguished
MFA v The Queen (2002) 213 CLR 606;  HCA 53, cited
R v Lee Kun  1 KB 337, cited
G T Sara (sol) for the appellant (pro bono)
D Kovac for the respondent
Guy Sara & Associates for the appellant (pro bono)
Director of Public Prosecutions (Queensland) for the respondent
- FRASER JA: The appellant appeals against two convictions of rape upon the grounds that the jury’s guilty verdicts were unreasonable and cannot be supported having regard to the whole of the evidence and that in all of the circumstances the verdicts are unsafe and/or unsatisfactory.
- The ultimate question raised by the contention that the verdicts are unreasonable and cannot be supported is whether the Court thinks that upon the whole of the evidence it was reasonably open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
- The complainant is the appellant’s daughter. She was seven on the occasion between 1 May and 28 June 2017 when it was alleged that the appellant raped her. The complainant was eight when she gave a recorded statement to police adduced in the Crown case and also when she gave her pre-recorded evidence about eight months later in early March 2018. The complainant’s mother had been in a relationship with the appellant for about seven years but they did not live together.
- Towards the commencement of the police interview, when the complainant was asked to tell an interviewer everything about what had happened, she replied that a “person was touching me and I told him to stop, but he didn’t listen … then, then he started scratching me … He put his rude part in my rude part … Then he told me to take off my clothes … I didn’t, I was starting crying, but I told him to stop and my grandma, my grandma said are you alright, then he said yes … Then my grandma came back and told him are you alright again … Then in the morning he told me to put all my clothes on. He didn’t do it once … He did it lots of times when I came to sleep over at the house.” The complainant identified the man who had done those things to her as being her father, who lived at his mother’s (the complainant’s grandmother’s) house, being the appellant.
- Towards the end of the interview, the complainant again referred to the appellant telling her to take all of her clothes off: “Then he started touching me and … scratching me, then he put his rude part in my rude part.” This happened in the appellant’s room at his mother’s house, where he had a room and a bed. The complainant described what she was wearing before she took her clothes off, as she was told to do by the appellant. It happened in the bed. The appellant had taken off all of his clothes too. The complainant started crying and did not want the appellant to touch her.
- When asked to tell the interviewer everything about how the appellant was touching her rude part, the complainant replied that the appellant “touched it with his hands … In the middle … He did it inside.” When the appellant “put his rude part in my rude part he did it harder”. That was when the complainant cried. She identified the appellant’s “rude part” as his “middle rude part” that he used for peeing. She identified her “rude part” as the part she used for peeing and going to the toilet. The complainant said that she did not tell her mother because the appellant would get angry.
- In the complainant’s pre-recorded evidence, she affirmed the truth of what she had seen and heard in the video recording of her conversation with the police. She substantially repeated the statements I have set out and added that the appellant scratched her rude part on the inside with his nails.
- In cross examination, the complainant said that her grandmother remained at the house during that night when the appellant did the things that hurt her. She agreed that it was a very small house with only two bedrooms and a lounge area. The complainant agreed that although she told police that the appellant had hurt her lots of times she only told her mother about one time when the appellant put his rude part into her rude part or touched it. The complainant agreed that the appellant got angry, he got cross at the children and she did not like that, and she used to get in trouble sometimes when she was staying with the appellant and she did not like that. She denied that her story was not true and that the appellant did not actually hurt her the way that she said that he did, or in any way in relation to her rude part. She denied that she told the story about him hurting her rude part so that she would not have to go and see him anymore. She denied that her mother would sleep in the same room as the appellant and said that her mother slept in the car. She also said that sometimes her mother slept in a chair in the house.
- In re-examination, the complainant said that her grandmother, her sisters, and her brothers were at her grandmother’s house. Her mother slept that night in the car.
- The complainant’s mother gave evidence through an interpreter in her first language, Kirundi. She said that the appellant resided at his mother’s house. He visited her and their four children at their house from time to time. On many occasions when she had argued with the appellant she slept in the car overnight whilst the children slept in one of the two beds in their grandmother’s room. When her relationship with the appellant was good they slept in the appellant’s bed in his bedroom, with their youngest child in the same room and the other three children in one of the beds in their grandmother’s room.
- The complainant’s mother referred to an occasion between five or six weeks after the last time when she had picked the appellant up, bought pizza and taken him to his home where she slept in the car. After that occasion the children had not stayed overnight but had been minded while the complainant’s mother did other things. When the complainant’s mother was in the car the complainant cried, and said that she did not want to go to the appellant’s place and that he had put his finger into her vagina.
- The complainant’s mother gave evidence that on the same day she spoke to the appellant and told him what the complainant had said. He admitted it and asked her to forgive him. She gave evidence of a conversation she had with the appellant while she was at a police station. The conversation was in Kirundi, which was also the appellant’s first language. The complainant’s mother verified the content of a recording of that conversation and an agreed translation of the content was in evidence as an exhibit. After some brief introductory remarks, the conversation continued (“A” refers to the complainant’s mother and “E” refers to the appellant):
“A - I was calling you to ask you about [the complainant’s] matter, last time I asked you about [the complainant’s] matter you agreed that you did it, but now you are denying having done something.
E - As far as I'm concerned I don't know anything at all.
A - Do you?
E - I don't know anything, and I didn't do anything at all.
A - You don't know anything? you don't know anything?
E - It's like my own child, I can't touch my own child, I think you are crazy.
A - Why did you give that answer?
E - I just gave that answer so that I can get away from you.
A - That day you said that you did it because you were drunk.
E - I didn't do anything”
- There was further conversation in which the appellant made statements consistent only with denials that he had sexually assaulted the complainant.
- The appellant’s mother’s first language is also Kirundi. She too gave evidence through an interpreter. She said that when the children stayed at her place to sleep she would sleep in one bed with one child and the other two children would share the other bed in her room. The complainant slept in her room and did not ever sleep in the appellant’s room. The complainant never called out when she was in the appellant’s room causing her to go and see the complainant. In cross examination the appellant’s mother gave evidence that earlier in 2017 the complainant’s mother said, “One day I will show him. Three months will not pass before I punish him”, referring to the appellant.
- A statement by a doctor was tendered by agreement in the Crown case. It referred to the complainant having attended a hospital emergency department with her mother late on 29 June 2017 and stated that the complainant was well and had no symptoms related to genital pain/discomfort or bleeding at that time. The statement refers to allegations of digital and penile penetration of the complainant within the period 20 May to 17 June 2017 that had caused the complainant pain, the complainant had reported noticing bleeding in the morning the next day when wiping, and it was thought that she had told her mother that day when she had come to pick her up from her father’s home. The statement refers to the complainant’s mother stating that the complainant had first advised her of what happened on 28 June 2017 after she had noticed some blood when she had gone to the toilet. The doctor examined the complainant on 3 July 2017. She reported that there was then no evidence of any genital injury either recent or past and that the examination was done outside the time period when it could be expected to retrieve trace evidence such as DNA. The doctor also reported that “This normal examination neither confirms, nor refutes the allegations as reported to police” and explained why that was so. After referring to possible causes of bleeding and bruising and those matters healing quickly and completely, the doctor stated that “normal examinations are commonly found in children where it can be verified from other means that they have been victims of sexual assault” and that the time period of the alleged assault – between two weeks and six weeks before the examination was done – “would provide sufficient time for any minor injuries such as bruising or abrasions to heal completely without leaving any residual abnormality”.
- The solicitor for the appellant, who commendably appeared pro bono, refers to three matters in support of the contention that the guilty verdicts are unreasonable and cannot be supported having regard to the whole of the evidence.
- The first submission is that if there had been digital and penile penetration as the complainant said in evidence there should be some evidence of minor and major injuries. The appellant acknowledged the difficulty in making this submission in circumstances where defence counsel did not cross examine the examining doctor but submitted that the absence of evidence of injuries contributed to a reasonable doubt about the appellant’s guilt. This submission is inconsistent with the only evidence upon the point, the admitted report of the doctor. The discussion in M v The Queen does not assist the appellant; unlike in this case, at the trial in M a medical practitioner gave evidence of her findings upon an examination of the complainant that what she saw was inconsistent with forced vaginal penetration having occurred.
- Secondly, it is submitted that there was evidence that the complainant’s mother coached her in the evidence she should give. The complainant’s mother denied in cross examination that she had told the complainant what to say. In a passage of the transcript of the complainant’s cross examination which the appellant cites, in response to a question whether the complainant talked to her mother about the story she was going to tell in court today, the complainant responded “… she always tells me, ‘Tell me what you’re going to say at court’. I could – she could – I tell her all the times because I need to know what I’m going to say.” There followed this exchange:
“I see? --- Because ---
Yep? --- Yeah.
Well – okay. And when you say, ‘All the times’, does that mean you’ve practised it with her a lot? --- Yeah.
Okay. And did you practise it with her today? --- Yeah, she told me. Yeah, I did.
Well, when you say she told you, did she tell you what you were going to say today? --- No, she just said, ‘You remember what you’re going to say’, then I said yes.
I see. And before today have you practised that lots with her before this morning? ---Pardon? She only told me about what’s going to happen. That’s all.
I see, but before you told us that you talked about this with her lots? --- Yeah, I did.
Okay. Well, have you been talking about it with her lots, you know, in the last week? --- Lots of – about what?
About the story you’re going to tell the court? --- Sometimes I tell her, sometimes I don’t. She only wants me to remind her and remind myself to tell them the truth.”
Understood in isolation, the complainant’s agreement that she had practised her evidence with her mother a lot is capable of supporting the submission for the appellant, but the complainant’s subsequent answers include specific denials of that proposition. It is evident from the transcript that at times the complainant had difficulty in understanding and giving responsive answers to questions. In that context and read as a whole the passage is consistent with the complainant having been confused by the questions asking whether she practised her evidence. It was reasonably open to the jury to conclude that the complainant did not intend to convey that her mother told her what to say.
- The third submission for the appellant is that it was not likely that the alleged offending occurred in such a small house while the complainant’s grandmother was present. The likelihood of the event occurring in the circumstances described by the complainant was a matter for the jury to consider, but there is nothing in the evidence to suggest that the appellant’s mother was so likely to detect him in the alleged offending as to make it improbable that it could have occurred.
- Although parts of the transcript of the complainant’s police interview are difficult to follow, in the passages extracted in  –  of these reasons the complainant gave a clear and forceful account of the two offences charged against the appellant. She adhered to that account in her pre-recorded evidence in the face of an intensive and lengthy cross examination. The jury could also find that in the pretext telephone conversation (see  of these reasons) the appellant’s failure to deny the suggestion that the appellant had agreed that he “did it” and his statement that he “just gave that answer so that I can get away from you” amounted to an implied admission that he had put his finger into the complainant’s vagina. The jury could regard that as supplying substantial support for the complainant’s evidence that he engaged in that conduct. In weighing the evidence of the appellant’s mother the jury could take into account her relationship with the appellant as well as the manner in which her evidence was given.
- This Court’s assessment of the evidence must proceed upon the footing that the jury was able to evaluate both “conflicts and imperfections” in the evidence at the trial. The Court must pay full regard to the considerations that the jury is the body entrusted with the primary responsibility of determining guilt or innocence and that it has had the benefit of having seen and heard the witnesses give evidence. With that in mind, it was reasonably open to the jury to be satisfied beyond reasonable doubt upon the whole of the evidence that the appellant was guilty of the offences.
- The appellant also contends that there was a miscarriage of justice because the court appointed interpreter for the appellant did not interpret the parts of the proceedings that were conducted in English for much of the trial. The respondent acknowledged that this contention should be regarded as being comprehended within the ground of appeal that the verdicts are unsafe and/or unsatisfactory and should be quashed.
- An order was made in the District Court appointing an interpreter to interpret the English language proceedings at the trial into Kirundi for the appellant. Immediately before the complainant gave her pre-recorded evidence in March 2018 defence counsel informed the judge presiding at that hearing that the appellant was reasonably competent in English but an interpreter was requested and the order made “out of an abundance of caution”. The judge stated that all of the questions and the answers at the pre-recorded hearing should be interpreted from English into Kirundi. After the complainant answered the first few questions, the judge drew the interpreter’s attention to the need to interpret the questions and answers. Again, during cross examination of the complainant, the judge intervened and informed defence counsel that she had noticed that the interpreter was not interpreting. The judge asked the appellant whether he could understand everything that was being said. The appellant answered that he could understand “little bit” or “half-half”. The judge indicated that defence counsel should speak more slowly and ask shorter questions so that they could be interpreted.
- At the commencement of the trial the interpreter for the appellant was sworn and seated next to the accused in the dock. The trial judge enquired whether the appellant had “any English”. Defence counsel responded that he did. The trial judge told the accused that “if you … don’t understand something tell me, and we’ll have it interpreted to you”. The trial judge asked if the appellant understood that and stated that if the appellant could follow the court would move slowly through things, but the appellant was to put his hand up the moment he did not understand and it would be interpreted. The appellant said “Okay”.
- Thereafter the interpreter for the complainant’s mother and the appellant’s mother was sworn in, the appellant was arraigned, and he pleaded not guilty. During the trial judge’s introductory remarks to the jury, the trial judge explained that the interpreter with the appellant was not interpreting every word because the appellant had told the trial judge that he had some English, but the trial judge had invited the appellant at any stage to put up his hand if he needed the interpreter to interpret. The rest of the first day of the trial was largely occupied by the recordings of the complainant’s police interview and her pre-recorded evidence being played to the jury.
- Shortly after the commencement of the second day, the trial judge read a question from the jury: “The defence barrister spoke with [the complainant] not having contact with her father for a period of six months. Where does that six-month period fit into the timeline? In particular, in relation to the no pizza night.” The prosecutor submitted that the question related to a question put to the complainant in her pre-recorded evidence which she did not accept. (In the relevant passage, the complainant said that she did not remember that she hadn’t been to the appellant’s house for about six months before she told her mother the story about the appellant.)
- Subsequently the complainant’s mother and the appellant’s mother gave evidence and a police officer gave formal evidence, including about the complainant’s police interview and taking a statement from the doctor who examined the complainant. The statement by the doctor was admitted by consent. The recording of the telephone conversation between the complainant’s mother and the appellant (in Kirundi) was played and a transcript of an agreed translation of the conversation was made an exhibit. After the prosecutor closed the Crown case, in the absence of the jury the trial judge discussed with defence counsel and the prosecutor what directions should be made to the jury. The trial judge read out two questions from the jury, concerning whether the complainant spoke to a child psychologist and whether there was any medical report or examination before the examination the subject of the agreed statement. When the jury returned, the trial judge answered the questions in the way discussed with counsel that there was no evidence of either thing. The accused was then called upon and defence counsel answered on his behalf that he did not wish to call or give evidence. The prosecutor then addressed the jury.
- After the lunch adjournment, defence counsel told the trial judge that it had just come to his attention that the appellant had not had his interpreter in the courtroom. The trial judge replied that she had assumed that the interpreter was not present because there was barely any interpreting done on the first day of the trial. Defence counsel acknowledged that he had to get the appellant’s instructions about whether to give evidence or not and stated, “Certainly we’re able to obtain those instructions.” Defence counsel said that he needed to get further instructions from the appellant, who had indicated to him that he would like an interpreter for the rest of the day. The trial judge subsequently remarked that it appeared that the appellant had fairly good English, judging by what had happened on the first day of the trial.
- After further discussion the trial judge observed that the interpreter was in court again. The trial judge asked the interpreter where he was that morning. The interpreter answered that he was at the court. Perhaps the interpreter was deterred from entering by a sign indicating the courtroom was not open to the public. It appears that the interpreter was absent only because he was not asked to enter the courtroom.
- The jury returned to the courtroom, defence counsel addressed the jury and the trial judge summed up. The verdicts were delivered on the following day.
- In Ebatarinja v Deland, to which the appellant’s solicitor referred, the High Court made observations about the entitlement of an accused person at a criminal trial to understand the proceedings and the nature of the evidence:
“On a trial for a criminal offence, it is well established that the defendant should not only be physically present but should also be able to understand the proceedings and the nature of the evidence against him or her. In Kunnath v The State, the Judicial Committee of the Privy Council said:
‘It is an essential principle of the criminal law that a trial for an indictable offence should be conducted in the presence of the defendant. As their Lordships have already recorded, the basis of this principle is not simply that there should be corporeal presence but that the defendant, by reason of his presence, should be able to understand the proceedings and decide what witnesses he wishes to call, whether or not to give evidence and, if so, upon what matters relevant to the case against him.’
If the defendant does not speak the language in which the proceedings are being conducted, the absence of an interpreter will result in an unfair trial. In R v Willie, Cooper J is reported to have ordered four Aboriginal prisoners to be discharged on a charge of murder when no interpreter could be found competent to communicate the charge to them.”
- The effect of the respondent’s argument is that the transcript of the trial reveals that the appellant had a sufficient grasp of English to be able to understand the proceedings.
- It should first be noted that the court order that an interpreter be provided for the appellant is inconsistent with a proposition that the fairness of the trial would be unaffected by the absence of the interpreter from the trial. The statement by counsel acting for the appellant in March 2018 that the appellant was “reasonably competent” in English and the order was made out of an abundance of caution could not justify disregard of the order.
- The record of the trial does not supply persuasive evidence that the appellant in fact had a sufficient understanding of English properly to understand the proceedings and decide whether he should give evidence and, if so, upon what matters that were relevant to the case against him. The appellant’s statement at the hearing in March 2018 that he could understand “little bit” or “half-half” of what was being said by the complainant conveys that the interpreter was necessary. Defence counsel’s response on the first day of the trial that the appellant did have “any English” does not suggest that the appellant’s English had improved by then. Nor is that indicated by the appellant’s acquiescence in the trial judge’s statement that he should put his hand up if he did not understand something so that it could be interpreted. That not much interpreting was done on the first day of the trial might have been attributable to factors other than the appellant understanding the proceedings, including that most of that day was occupied by evidence with which the appellant may have been familiar (the complainant’s police interview and pre-recorded evidence) and that the interpreter may simply have failed to interpret (as seems to have occurred earlier – see  of these reasons).
- The proceedings on the second day that were conducted in English in the absence of the interpreter could not be said to lack sufficient significance to justify overlooking the absence of the interpreter. That unfortunate absence compromised the fairness of the trial.
- For these reasons the trial miscarried and there must be a new trial.
- I reach that conclusion without referring to the appellant’s application to adduce as evidence in the appeal an affidavit by his solicitor and an affidavit by a solicitor who acts as the migration agent engaged by the appellant. The respondent opposed the application.
- The only statement in the affidavit of the migration agent that is relevant to an issue in this appeal is that the appellant “informed me that his level of English understanding, particularly in the course of his trial, was very poor as he has very limited education in that he did not complete High School.” The respondent objected to the admission of this evidence on the ground that it is hearsay. The statement is hearsay. The migration agent also deposed to the difficulty in obtaining an affidavit from the appellant because of the logistical problems of forwarding a draft affidavit to the appellant to sign at the detention centre where he was held, where there would be no interpreter to translate the document and no opportunity to have the document appropriately witnessed as an affidavit. I am not aware of any applicable exception to the hearsay rule, but this topic was not addressed in the parties’ submissions.
- The solicitor for the appellant deposed that he believed that he had met the appellant in person on at least one occasion and possibly two occasions and he had also had “maybe” two telephone conversations with him. The particularly relevant statements in the affidavit are that the appellant’s “English communication skills are of a poor to mediocre quality, and when I met with him face-to-face I had to speak with him like he was a child … I suspect he got the gist of what our conversation was about but that was because I laboured quite intensively to get the point across to him.” That may be admissible as non-expert opinion evidence, on the footing that it falls in the category of a case where “the facts from which a witness received an impression are too evanescent in their nature to be recollected, or too complicated to be separately and distinctly narrated”. The parties also did not direct submissions to this topic.
- If the new evidence were admitted it would supply further support for the order I propose. It is therefore not necessary to decide whether the new evidence is admissible. I would refuse leave to adduce the evidence upon the ground that it is unnecessary.
- I would allow the appeal, order a new trial and refuse the application by the appellant to adduce evidence in the appeal.
- McMURDO JA: I agree with Fraser JA.
- CALLAGHAN J: I agree with Fraser JA.
M v The Queen (1994) 181 CLR 487 at 493.
(1994) 181 CLR 487 at 498 – 499 (Mason CJ, Deane, Dawson and Toohey JJ) and at 511 – 512 (Gaudron J).
MFA v The Queen (2002) 213 CLR 606 at 634.
M v The Queen (1994) 181 CLR 487 at 493.
(1998) 194 CLR 444 at 454  – .
Internal citations have been omitted.
Compare R v Lee Kun  1 KB 337 at 343, in which the English Court of Criminal Appeal (Lord Reading CJ, Scrutton and Lowe JJ) concluded that “the safer, and therefore the wiser, course, when the foreigner accused is defended by counsel, is that the evidence should be interpreted to him except when he or counsel on his behalf expresses a wish to dispense with the translation and the judge thinks fit to permit the omission; the judge should not permit it unless he is of opinion that because of what has passed before the trial the accused substantially understands the evidence to be given and the case to be made against him at the trial.”
Cross on Evidence, Australian Edition, The Hon J D Heydon AC QC, , quoting from J H Wigmore, Evidence in Trials at Common Law, Chadbourne Rev, 1978, vol 7, , quoting Cornell v Green 10 S & R 14 at 16 (Pa 1823). See also R v Von Einem (1985) 38 SASR 207 at 210 (King CJ, Jacobs and Olsson JJ agreeing); R v Aldridge (1990) 51 A Crim R 281 at 288 (Hunt J, Enderby and Grove JJ agreeing).
- Published Case Name:
R v TAN
- Shortened Case Name:
R v TAN
 QCA 64
Fraser JA, McMurdo JA, Callaghan J
07 Apr 2020