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R v TAU[2021] QCA 289

SUPREME COURT OF QUEENSLAND

CITATION:

R v TAU [2021] QCA 289

PARTIES:

R
v
TAU
(applicant)

FILE NO:

CA No 20 of 2021
DC No 227 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 14 February 2020 (Farr SC DCJ)

DELIVERED ON:

17 December 2021

DELIVERED AT:

Brisbane

HEARING DATE:

26 August 2021

JUDGES:

Fraser and Mullins JJA and North J

ORDER:

Application for extension of time to appeal against conviction refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the application for extension was filed a little over 10 months out of time – where there was no affidavits to support the submissions made by the applicant as to the reasons for the delay – whether the proposed appeal seemed viable

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF DEFENCE COUNSEL – where the applicant was convicted after trial before a jury of two counts of indecent treatment of a child under 16, under 12, under care – where the applicant made complaints about the lack of cross-examination and objections on the part of his trial counsel – whether there was any inadequacy in the applicant’s legal representation at the trial

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE BY EVIDENCE – APPEAL DISMISSED – where the applicant was convicted after trial before a jury of two counts of indecent treatment of a child under 16, under 12, under care – where there were some inconsistencies between the complainant’s evidence and her preliminary complaints and her pre-recorded evidence – where the inconsistencies were the subject of the cross-examination of the complainant and the applicant’s trial counsel’s address to the jury – where there was some corroborating evidence for the complainant’s evidence – whether there was any feasible prospect for the applicant to challenge the reasonableness of the verdict

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL DISMISSED – where the applicant was convicted after trial before a jury of two counts of indecent treatment of a child under 16, under 12, under care – where there were inconsistencies in the complainant’s evidence particularly about whether the applicant’s fingers penetrated her vagina – where the trial judge refused to give a direction to the jury based on Robinson v The Queen (1997) 197 CLR 162 – whether the trial judge erred in failing to give a Robinson direction

R v Tait [1999] 2 Qd R 667; [1998] QCA 304, cited

COUNSEL:

The applicant appeared on his own behalf
S L Dennis for the respondent

SOLICITORS:

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

  1. [1]
    FRASER JA:  I agree with the reasons for judgment of Mullins JA and the order proposed by her Honour.
  2. [2]
    MULLINS JA:  On 14 February 2020, the applicant was convicted after trial before a jury in the District Court of two counts of indecent treatment of a child under 16, under 12, under care.  Although the applicant was represented at his trial, he now appears for himself to apply for an extension of time to appeal against his conviction.  The application for extension was filed on 20 January 2021 which was a little over 10 months out of time.
  3. [3]
    The grounds relied on for the delay in the application for extension are the applicant’s poor mental health and severe psychological trauma from being “wrongfully imprisoned”, poor advice from his lawyer that he should not appeal and the limited access to resources in the prison due to COVID-19 lockdowns.
  4. [4]
    The grounds of appeal set out in the notice of appeal are:
  1. (1)
    inadequate legal representation;
  1. (2)
    evidence did not support a guilty verdict;
  1. (3)
    Robinson warning denied.
  1. [5]
    The applicant makes additional complaints in the outline of submissions, including a lack of impartiality on the part of the learned trial judge, the evidence and conduct of the police officer and the treatment of the evidence of the applicant’s wife by the prosecutor.  During the hearing of the application, the applicant acknowledged that he now understood that the police officer’s addendum statement about his communications with the applicant’s wife was not used in the trial.  It is not necessary to deal any further with that aspect.  The applicant also complained about the investigating police officer’s sitting with the complainant’s mother during the trial.  The complainant’s mother was the second last witness.  If the police officer sat next to the mother during the evidence of the last witness at the trial and even thereafter for the addresses and the summing up, that was not a matter that would have any bearing on the jury’s view of the applicant.  The trial judge gave the usual directions to the jury to disregard all feelings of sympathy or prejudice and approach their duties dispassionately, deciding the facts upon the whole of the evidence.  It is also not necessary to deal any further with this aspect.
  2. [6]
    In deciding whether to exercise the discretionary power to extend the time for appealing, the court examines whether there is any good explanation for the delay and considers whether it is in the interests of justice to grant the extension which may involve some assessment of whether the appeal seems to be viable, if it is feasible to make that assessment: R v Tait [1999] 2 Qd R 667, 668.  No affidavit material was filed by the applicant in relation to the legal advice obtained about appealing against the convictions or his asserted mental health issues that may have been relevant to explain the delay in filing the notice of appeal.  The question of the viability of an appeal is therefore the focus of this application.

The evidence

  1. [7]
    The complainant for each count was the applicant’s daughter’s 10 year old friend who lived next door to the applicant’s family.  The applicant’s daughter was 13 years old and I will refer to her as “the daughter”.  The complainant’s allegation was that both offences were committed on one occasion during a sleepover by the complainant at the applicant’s home on the night of 2 and 3 March 2019.  The complainant and the daughter were sleeping on single mattresses next to one another on the floor in the dining room area of the house.
  2. [8]
    The complainant’s s 93A statement was recorded on 3 March 2019.  A s 93A statement was obtained from the complainant’s sister on 13 March 2019.  The evidence of both of them was pre-recorded on 12 November 2019.
  3. [9]
    The complainant’s s 93A statement included the following.  The complainant had brought her unicorn night light and put it between the two mattresses.  The complainant had fallen asleep on the night of the sleepover and woke up, because she felt something on her.  It was the applicant (as she saw his face) beside her with his fingers in her private parts on the inside of her underwear.  She asked him to stop, but he would not stop.  It was about midnight, according to the complainant’s watch.  (That was the subject of count 1.)  The applicant called her an “asshole” and “bitch”.  When the applicant left to go to the toilet, he then came back, and laid down next to her and kept doing what he was doing before of putting his fingers down her pants.  (The repeat of the same conduct constituted count 2.)  The last time he came back, the complainant had got up to pack her stuff and he told her to lay down, but she did not.  He said to her “please, just let me do something.  I promise that you’re gonna like it”.  The complainant was in tears and scared and asked if she could go home and the applicant said “no, you are going to tell your mum and if you do I am going to kill your family and he said he could not go to gaol”.  The complainant thought he was gone, and laid down again, but the applicant came back and was running his fingers up her leg tickling it.  At the end of what the applicant did to the complainant, his wife saw him laying next to the complainant with his hands underneath the blanket and she pulled him away from the complainant and put him in his room.  The applicant’s wife did not say anything to the complainant.  The complainant fell asleep.
  4. [10]
    In the pre-recorded evidence of the complainant, she confirmed that when the applicant touched her private part for the second time, his fingers were in the same place as for the first time.  In cross-examination, the complainant’s evidence included the following.  The unicorn night light was not working that night.  When the applicant’s fingers were in her pants, they were touching her skin. Even though it was dark, she saw the applicant, because he was right in her face.  The applicant’s fingers were not inside her private part.  The complainant did remember it happening again, as she did feel it again and the applicant was right next to her in the same spot as for the first time.  It was hard for her to remember the second time.  The complainant did not scream out.
  5. [11]
    The prosecution called the applicant’s wife as a witness and her evidence included the following.  The complainant and the applicant’s daughter between 3 pm and 3.30 pm asked the applicant’s wife whether the complainant could sleep over.  Eventually the applicant’s wife agreed.  The applicant’s wife started drinking bourbon mixed with coke from around 4.30 pm until 2 am the next morning.  She described herself as not intoxicated, but “Not smart to drive a vehicle”.  The applicant was drinking Budweiser during the day and evening.  The daughter, her sister and her brother and the complainant watched a movie in the lounge room after dinner.  The daughter and the complainant slept on two single mattresses in the dining room underneath the air conditioner.  Throughout the night the applicant’s wife was coming out of their bedroom to go to the toilet and to the refrigerator and at one point she observed the daughter and the complainant asleep.  The applicant’s wife preheated the oven around 2 am to heat her dinner which she sat down on her bed to eat at approximately 2.20 am.  When she finished, she returned to the kitchen at about 2.40 am, she observed the applicant asleep on the tiles near the back door in the kitchen and the girls were still on the mattresses.  The applicant’s wife grabbed the applicant’s arm and he got up and walked with her to the bedroom.  The applicant’s wife returned as she noticed that the daughter did not have a blanket over her and she put the blanket on her.  She noticed that the complainant’s eyes were open and asked her if she was ok, and the complainant said “yeah”.  The next morning the complainant returned to her home about lunchtime.
  6. [12]
    The following evidence was given in cross-examination by the applicant’s wife.  The mattresses were placed so their long side was parallel to the back wall of the house.  The complainant was on the mattress closest to the wall and the daughter was on the mattress closest to the kitchen.  The applicant’s wife did not see the applicant on either of the mattresses the girls were sleeping on and did not see him touching the complainant in any way.  When the applicant’s wife spoke to the complainant, there were no signs visible to her that the complainant was upset.  The complainant returned home around lunch time, but came back on two occasions during the afternoon wanting to play with the daughter.  The applicant’s wife said “No” on the first request, but let the daughter play, when the second request was made an hour later.  The applicant’s wife said that on the Sunday morning, she offered lollies to the children to clean up the mess in the kitchen.  The lolly packets were in the bedroom of the applicant and his wife and the daughter, her sister and the complainant helped open the packets and put them in a container and took out the lollies.  They did that on the bed.  The applicant’s wife was on the left side of the bed, the applicant was on the right side, the daughter was in front of the applicant, the complainant was in the middle next to the daughter and the applicant’s other daughter was on the left, closest to the applicant’s wife and next to the complainant.  The children then left with their lollies and continued to play.
  7. [13]
    Preliminary complaint evidence was given by the complainant’s mother and sister.  The complainant’s mother’s evidence included the following.  The mother did not see the complainant until she returned home from work around 4 pm on 3 March 2019.  The complainant got home around 5 pm.  After dinner the complainant who was in a “pretty traumatic state” came to see her mother and said she needed to talk to her.  The complainant said “that her downstairs was hurting”.  When the mother inquired as to what was causing the problem, the complainant said that she could not tell her, because the applicant had threatened to kill her mother and her, if the complainant told her mother.  The mother insisted and the complainant told her that “he had touched her downstairs” by which the mother understood she was describing her private region.  The complainant said to her “that he had his hands inside her pants and that he had his hands inside her and he was holding her down”.  The mother asked the complainant if she was lying, because that was a serious thing to hear and the complainant said she was not.  The complainant also told her mother that the applicant had called her some quite aggressive names such as a bitch, a slut and a naughty little girl.  The complainant’s mother contacted the police and took the complainant to the police station.
  8. [14]
    The complainant’s sister’s evidence in the s 93A statement included the following.  The sister was 14 years old at the date of the incident.  On the evening of Sunday 3 March 2019, the sister was doing the dishes from dinner, when her mother came out and told her to go and look after the complainant.  The complainant then told the sister that the applicant “had touched her private parts with his fingers”.  Her mother returned to the room and asked the complainant “are you sure he put his fingers inside you” and the complainant said “yes”.  The complainant also told her sister that the applicant threatened “to kill all of us if she told anyone”.  When the complainant came home at lunch time after staying the night at the applicant’s home, she said to her sister that “she’s never sleeping over there again”.  The sister had asked the complainant and their brother to come home for lunch from the applicant’s house.  The complainant had also told her on Sunday night that the applicant’s wife had pulled the applicant off and told him to go to the bedroom.  The complainant had returned home on the Sunday morning and then went out to play with the applicant’s daughter and her sister.  During cross-examination, the sister confirmed that, when she gave lunch to the complainant, the complainant did not tell anything about the applicant’s touching her and she did not seem upset.  When the complainant told her about the applicant’s touching her private parts, she used both the expression “private parts” and “downstairs”.
  9. [15]
    The applicant participated in a record of interview with the investigating police officers commencing at about 4.45 pm on 4 March 2019 which was played before the jury.  The statements made by the applicant in this interview included the following.  He started drinking on 2 March 2019 about 11 am.  He commenced with a can of Jack Daniel’s and consumed three to four Wild Turkey cans and half a carton of Budweiser beer.  He was quite intoxicated.  The last thing he remembered was watching movies with his wife and going to bed.  Three or four times during the evening, the applicant went from the bedroom to the refrigerator to get a beer.  He did not remember speaking to any of the children before he went to bed.  When he woke up on Sunday morning, he was hungover.  He said that it never happened that he laid down next to the complainant on the mattress.  He denied placing his hand down her underwear, as he would not do that.  He denied inserting his fingers into her vagina.  He did not remember his wife coming out and grabbing him by the arm and taking him back into the bedroom.
  10. [16]
    On 4 March 2019, the complainant was examined by Dr Waugh who is a paediatrician and involved in child protection work.  There was no evidence of any redness or skin break in the hymen and the genitals and anus appeared normal.  His findings were neutral, so that no conclusion could be drawn on whether there was a sexual assault based on those findings.  He collected swabs from sample areas for DNA testing.
  11. [17]
    Forensic scientist Ms Jarman received the sexual assault investigation kit put together by Dr Waugh, a further two samples of fingernail scrapings from the applicant’s right and left hands, a tape-life from the interior front and back surfaces of the complainant’s underpants and then two reference samples from the complainant and the applicant respectively.  The investigation kit contained a total of five swabs.  Other than the swab from the labia majora, the testing revealed only a single source profile of DNA which was from the complainant.  The mixed DNA profile from the labia majora swab indicated presence of DNA from the complainant and one other contributor.  The applicant was excluded as having contributed DNA to that profile.  No spermatozoa was found.
  12. [18]
    The mixed DNA profile obtained from the sample of fingernail scrapings from the applicant’s right hand indicated the presence of DNA from three contributors.  The complainant was excluded as having contributed DNA to that mixed DNA profile.  There was a mixed DNA profile indicating the presence of DNA from two contributors from the fingernail scrapings from the applicant’s left hand.  The complainant was excluded as having contributed DNA to that mixed DNA profile.
  13. [19]
    The profile obtained from the tape-lift from the complainant’s underpants indicated the presence of DNA from three contributors, one of whom would be the complainant.  The DNA profile of the applicant was compared to mixed DNA profile and the mixed DNA profile obtained was approximately five times more likely to have occurred, if the applicant had not contributed DNA, rather than if he had.
  14. [20]
    Ms Jarman gave general evidence about the transfer and detection of DNA as follows.  If a person touches another surface including the skin of another person, there will not necessarily be a transfer of DNA.  The shedding of DNA by a person onto their skin that is then available for transfer differs from individual to individual.  Other factors that contribute to whether DNA will be transferred include whether hand washing had taken place recently, the type of surface being touched, the length of the touch and the friction involved and whether the person touched has showered, washed or gone to the toilet.  Sampling techniques can also affect whether DNA is recovered, such as the swab may not be taken from the exact location where touching occurred.  An absence of DNA in samples from a surface does not necessarily mean that a person did not contact the surface.  The applicant’s trial counsel did not cross-examine Ms Jarman.

The applicant’s submissions

  1. [21]
    The applicant submits that the guilty verdicts are inconsistent with the rape kit results and the DNA results that proved no sexual assault occurred.  The neutral finding from the medical examination of the complainant and the DNA results that did not implicate the applicant were only part of the evidence and the outcome before the jury (and on any appeal) depends on an assessment of all the evidence.  The applicant complains that he had inadequate representation at the trial, as his trial counsel did not cross-examine Dr Waugh and Ms Jarman.  The applicant’s trial counsel did, in fact, cross-examine Dr Waugh on the sampling process with respect to the labia majora.  In view of the results from both the medical examination and the DNA analysis, there was little scope for cross-examination.  This does not provide a basis for asserting inadequate legal representation.
  2. [22]
    The applicant also seeks to blame his trial counsel for not objecting to evidence not being recorded as exhibits in the trial that were tendered during the complainant’s pre-recorded evidence.  The prosecutor mistakenly believed those exhibits were already in evidence before the jury.  They were never tendered into evidence for the purpose of the trial, but the jury viewed them to the extent they could be seen on the screen when the pre-recorded evidence was played.  They were in the nature of the diagrams drawn by the complainant in the investigating police officer’s notebook of the houses in the street and a floor plan of the applicant’s house and some photographs.  Much more comprehensive photographs of the applicant’s house and the relevant areas within the house and of the complainant’s nightie and underpants were tendered into evidence.  The applicant’s trial counsel did not raise any objection about the few exhibits tendered during the pre-recorded evidence not being tendered at the trial.  In the circumstances of the nature of those exhibits, the trial counsel’s failure to pursue the issue did not demonstrate any inadequacy in legal representation or consequence for the fairness of the trial.
  3. [23]
    The applicant’s submissions focus on inconsistencies in the complainant’s accounts of the incident.  The applicant also submits that the complainant’s behaviour after the alleged incident in continuing to stay at his house was inconsistent with being traumatised by the alleged conduct.  The matters that the applicant focuses on were the subject of cross-examination of the complainant and the applicant’s trial counsel’s address to the jury.  They are matters to be taken into account in assessing whether there is a possibility of the applicant’s showing that the verdicts are unreasonable or unsupported by the evidence.  The problem for the applicant in pursuing this proposed ground of unreasonable verdict is that these were matters that were drawn to the attention of the jury, but these inconsistencies had to be considered in the context of the whole evidence.
  4. [24]
    In assessing the complainant’s evidence, it was relevant that the complainant timed the commencement of the offending at midnight and made the preliminary complaints after dinner the same day and her s 93A statement was recorded that same night.  There was some support for the complainant’s evidence in the applicant’s wife finding the applicant lying out in the area near the complainant in the early hours of the morning and returning him to the bedroom, even though there were other differences between the applicant’s wife’s evidence and the complainant’s evidence.  It was also relevant that the applicant was so intoxicated on the evening in question that he had no memory of his wife guiding him back to the bedroom.  These were all matters for the jury’s assessment.  There is little prospect for the applicant in challenging the reasonableness of the verdicts that depended upon the jury’s assessment of the reliability and credibility of the complainant.
  5. [25]
    Based on the inconsistencies in the complainant’s evidence particularly about whether the applicant’s fingers penetrated her vagina, the applicant’s trial counsel submitted that the trial judge should have given a Robinson direction, based on Robinson v The Queen (1999) 197 CLR 162.  The trial judge refused to do so, on the basis that the inconsistencies within the complainant’s evidence were not to the extent that warranted a warning that the jury needed to scrutinise the complainant’s evidence with great care.  The trial judge otherwise gave the jury the usual directions during the summing up about the consideration of the complainant’s evidence which covered the circumstances of the case.  It was not an error not to give a Robinson direction.  The applicant seeks to characterise the trial judge’s refusal to give this direction as a lack of impartiality.  That cannot be the case for a ruling that was properly made.  It should be added that the suggested error would not in any event justify a conclusion that the trial judge lacked impartiality.
  6. [26]
    The applicant’s complaint about the manner in which his wife was treated by the prosecutor who was commencing to cross-examine her when she was a witness in the prosecution case was objected to by the applicant’s trial counsel and dealt with appropriately by the trial judge during the applicant’s wife’s evidence.
  7. [27]
    Despite the extensive written submissions made by the applicant challenging the various aspects of the trial, I am not persuaded that he has shown that he has a viable appeal.

Order

  1. [28]
    It follows that the application for extension of time to appeal against conviction must be refused.
  2. [29]
    NORTH J:  I agree with the reasons for judgment and the order proposed by Mullins JA.
Close

Editorial Notes

  • Published Case Name:

    R v TAU

  • Shortened Case Name:

    R v TAU

  • MNC:

    [2021] QCA 289

  • Court:

    QCA

  • Judge(s):

    Fraser JA, Mullins JA, North J

  • Date:

    17 Dec 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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