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R v Taufao[2022] QCA 30

SUPREME COURT OF QUEENSLAND

CITATION:

R v Taufao [2022] QCA 30

PARTIES:

R

v

TAUFAO, Sakaria

(appellant)

FILE NO:

CA No 33 of 2021
DC No 558 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 22 January 2021 (Burnett DCJ)

DELIVERED ON:

11 March 2022

DELIVERED AT:

Brisbane

HEARING DATE:

15 October 2021

JUDGES:

Fraser, McMurdo and Mullins JJA

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the appellant was convicted of one count of rape – where the complainant was intoxicated and walking home – where an Uber driver stopped and offered to drive the complainant home – where the complainant got into the car – where the driver took the complainant to an isolated location and raped her – where the complainant’s driver’s licence was found in the appellant’s car almost two years after the rape – where the issue at trial was whether the appellant was the complainant’s assailant – where the complainant was uncertain whether her driver’s licence was on her when she got into the vehicle in which she was raped – where the prosecution relied on the finding of the complainant’s driver’s licence in the appellant’s vehicle as a fact in the circumstantial case – where there was no connection between the complainant and the appellant otherwise to explain the presence of her driver’s licence – whether the trial judge was required to direct that the jury would have to be satisfied beyond a reasonable doubt that the complainant was in possession of her driver’s licence at the time she entered the vehicle, if that fact was to form part of their reasoning to reach a guilty verdict

COUNSEL:

M J Jackson for the appellant

S L Dennis for the respondent

SOLICITORS:

Dib & Associates for the appellant

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]
    McMURDO JA:  I agree with Mullins JA.
  3. [3]
    MULLINS JA:  Mr Taufao was convicted after trial before a jury of one count of rape committed on 5 September 2015.  There is one ground of appeal which is that a miscarriage of justice occurred because the learned trial judge failed to direct the jury that, if the complainant was in possession of her driver’s licence at the time she entered the appellant’s motor vehicle, and that was to form a significant part of their reasoning towards finding the appellant guilty, the jury would have to be satisfied of that fact beyond a reasonable doubt.

Relevant facts

  1. [4]
    The appellant was an Uber driver.  It was admitted that from 2 January 2015 he was the registered owner of a BMW sedan with an admitted registration number and registered to him at a specified address.  The BMW was not registered to any other Uber driver.
  2. [5]
    On 7 July 2017 police found the complainant’s driver’s licence in the appellant’s BMW.  Evidence was given by a scenes of crime police officer who examined the BMW and found five or six personal and business cards in the centre console of the vehicle above the three slot USB device.  The complainant’s driver’s licence was located amongst that pile of cards.  Police did not locate any fingerprints on the licence.
  3. [6]
    On that same day Officer Murray telephoned the complainant and told her that her driver’s licence was found in a grey BMW.  The complainant told Officer Murray that “she had never been in a grey BMW the night she lost her property”, she “only caught one taxi from Ipswich to the city”, and that “something happened to her that night in a car by an older man with brown skin”.  The complainant had a conversation with Officer Murray the next day, when she disclosed that it was an Uber and not a taxi in which something that involved her vagina and the driver’s penis happened that night.  The complainant then made a formal complaint that was investigated by Detective Jordan.
  4. [7]
    The complainant’s evidence at the trial included the following.  She had used her driver’s licence to enter a nightclub in Ipswich on the evening of 4 September 2015, when she was almost 18 years and six months old.  The last time she remembered seeing her licence was when she put it in her bra after entering the club.  She left the club at about 11.30 pm, but when she attempted to return to the club, she was refused access, because she was too intoxicated.  She had left her purse and phone in the club.  When she returned to the club about a week later to collect her purse and phone, she realised that her driver’s licence was not in her wallet.
  5. [8]
    The complainant’s description of the incident in her evidence-in-chief was as follows.  She had left the club to walk out with a friend who got a taxi and when she was refused re-entry, she waited a further 15 to 20 minutes, before she started walking home.  That was around midnight or just after.  She was almost home, when a sedan with leather interior pulled up beside her and the driver asked if she needed a lift.  When she declined, the driver said “It’s okay, I’m an Uber.”.  She said she was heading to Fortitude Valley.  He started driving off and then drove down a dirt road called Austin Street which was about a 15 minute drive and pulled up in an isolated area in the bush and told her to get into the back seat.  He was “a bit of a solid man” and “very intimidating” and she did as he said.  He opened the back door, undid his pants, proceeded to lift up her dress and pull down her underwear, pulled her by the legs close to him and then inserted his penis into her vagina.  He was rough and aggressive.  She saw him ejaculate outside the car.  He then told her to get back into the front seat.  After pulling her underwear up and pulling her dress down, she did so.  He then drove her to Fortitude Valley.  After he dropped her off, the complainant talked to police, went to the Police Beat, and spoke to a chaplain.  The driver had a darker complexion, short dark hair and a bit of a beard or some facial hair.  He had an accent, but the complainant could not identify the accent.  The complainant did not consent to having sexual intercourse with him.
  6. [9]
    In cross-examination, the complainant’s evidence included the following.  She could not remember being in a grey BMW on the night she was raped.  The complainant did not have an Uber account at the time of the incident.  She could not explain why she got in the car, when she did not order it.  When the complainant described the driver to Detective Jordan, she described him as being Indian.  The complainant told Detective Jordan that she only had a very vague image of what the driver looked like and she would not be able to recognise him.  The complainant was taken to the Police Beat by the three police officers and she did not say anything to them about being raped.  When she spoke to the chaplain, she did not tell him that she had just been raped.  The chaplain drove her to her friend’s place later that morning.  It was from her friend’s place that she reported to the Ipswich Police beat that her phone, wallet and driver’s licence were missing.  The complainant assumed her driver’s licence was in her wallet at that stage.  The complainant accepted that in her statement given on 12 July 2017, she said that “I may have put my Queensland driver’s licence inside my bra after scanning it at the club.”.  The complainant did not actually remember the last time that she saw her driver’s licence.
  7. [10]
    In re-examination, the complainant stated that she did not make any complaint of rape to the police officers or the chaplain, because she was scared and still in shock.  What she would normally do with her driver’s licence, when she went out to the club, was put it back in her purse.  Despite the answer the complainant gave in cross-examination, she clarified in re-examination that the last time she remembered seeing her driver’s licence was when she put it in her bra after entering the club.
  8. [11]
    A witness from Uber Australia produced a bundle of documents applicable to the appellant (exhibit 4) that included the driving jobs he did for Uber on 4 and 5 September 2015.  The witness explained that Uber is a technology platform that connects driver partners who provide ridesharing services with customers who request those services through a mobile phone application.  He explained how the driver’s Uber mobile phone application worked and the information recorded in the Uber database when the driver was online and available to accept requests for service.  For each trip, the data showed when the appellant’s vehicle accepted a job, when his vehicle arrived, if the trip was cancelled by the driver or the user, and if the trip began, when it began and when it was completed.  The data also recorded the GPS location of the vehicle when the driver was online or interacting with the application.  The data showed the appellant’s vehicle accepted a job at Brisbane Street, Ipswich at 12.01 am on 5 September 2015, he arrived at 12.03 am, but then cancelled the trip at 12.14 am.  He was dispatched for another job at 12.29 am at Brisbane Street, Ipswich which was cancelled by the user at 12.30 am.  There is a gap in the data between 12.30 am and 2.02 am.  The appellant’s vehicle accepted a job at 2.02 am that was at 657 Ann Street, Fortitude Valley that was cancelled by the user at 2:05 am.  The next job accepted by the appellant’s vehicle was at 2.05 am and was for a trip that commenced at Pearson Street, Kangaroo Point that started at 2.10 am.  Another table in exhibit 4 showed that between 12:43:40 am and 14:01:44 am, there was no data captured by the application between those two times which was indicative of the application being offline and not being interacted with at all.  The same vehicle can be registered to multiple Uber drivers, but the appellant’s BMW was not.  The witness conceded that there was nothing to stop a person from accessing a particular Uber driver’s account and application and using that to pick up rides, although the witness noted that was against Uber’s community guidelines that provide for the minimum standards of behaviour and a number of technological pieces in place to prevent that.
  9. [12]
    The appellant did not call or give evidence.

The issue at trial

  1. [13]
    The issue at trial was whether the appellant was the complainant’s assailant.  The case was circumstantial.  The finding of the complainant’s driver’s licence in the appellant’s vehicle almost two years after the rape was a significant aspect of that circumstantial case.  The appellant’s trial counsel argued to the jury against the significance of the finding of the complainant’s driver’s licence in the appellant’s vehicle on the basis of the numbers of people who would have been in and out of the appellant’s car during the period between the loss of the complainant’s licence and it being found in the appellant’s vehicle and that the police investigation focused solely on the appellant and failed to investigate any other Uber driver who had been in the vicinity, when the complainant was raped.
  2. [14]
    In the summing up, when the trial judge was dealing with the assessment of witnesses, one of the inconsistencies in the complainant’s evidence that was highlighted was the location of the complainant’s driver’s licence on the relevant night.
  3. [15]
    The trial judge gave the usual directions about a circumstantial case and explained that there were a series of facts relied on by the prosecution, where a particular fact might not be proved beyond reasonable doubt, but the collective facts may satisfy the jury beyond reasonable doubt that the appellant was the complainant’s assailant.  The trial judge listed the facts relied on by the prosecution.  They included that the information from the Uber database showed the appellant’s vehicle was in the location at the time when the complainant was picked up after she had walked from the nightclub and was in the location at the time when the complainant was dropped into Fortitude Valley.  It also included that the database ceased recording between 12.43 am and 2.01 am and that covered the period when the offending was committed against the complainant.  Another fact was that the complainant’s driver’s licence was found in the appellant’s grey BMW car.  Another fact relied on by the prosecution related to the finding of the licence in the appellant’s BMW was that there was no evidence of a connection between the complainant and the appellant otherwise to explain the presence of her driver’s licence in the appellant’s BMW.
  4. [16]
    The appellant’s trial counsel had unsuccessfully sought a direction from the trial judge that the jury had to be satisfied beyond reasonable doubt that the complainant was in possession of her driver’s licence when she entered the Uber on the relevant evening, on the basis that was an indispensable fact in reaching a guilty verdict. 

Should the jury have been directed that they had to be satisfied beyond reasonable doubt that the complainant was in possession of her driver’s licence when she entered the BMW?

  1. [17]
    Mr Jackson of counsel for the appellant concedes that whether or not the complainant was in possession of her driver’s licence when she entered the Uber was not an intermediate fact that was an indispensable link in the chain of reasoning towards an inference of guilt (in the sense used in Shepherd v The Queen (1990) 170 CLR 573, 576, 579, 583), but submits that a “prudential direction” to the effect that the jury could not bring in a guilty verdict unless that fact was proved beyond reasonable doubt was required in the circumstances.  The appellant relies on various statements made in the Victorian Court of Appeal to the effect that a direction may be required in relation to a piece of evidence if that evidence is of such practical importance that it is prudent to direct the jury that they must be satisfied about it beyond reasonable doubt and one instance of which was the reference by Callaway JA in a postscript to his Honour’s judgment in R v LRG (2006) 16 VR 89 at [39]-[40].
  2. [18]
    The fact on which the appellant seeks to focus for the purpose of this appeal is not one that was part of the prosecution’s circumstantial case at trial.  There was a very good reason for that.  Overall, the effect of the complainant’s evidence was that she was uncertain whether her driver’s licence was on her when she got into the vehicle in which she was raped.  She had used her licence to enter the club.  She could not remember whether she had put it in her purse or put it inside her bra.  It was not with her wallet when she collected the wallet from the nightclub a week later.  The circumstantial case depended on the finding of the licence in the appellant’s vehicle almost two years after the rape in conjunction with the other circumstances.
  3. [19]
    By expressing the fact in the terms which the appellant now argues was required to be the subject of a direction that the jury was satisfied beyond reasonable doubt, the appellant is incorporating the ultimate issue of the identity of the assailant into that fact.  This is an element of circular reasoning in that approach.  The jury were satisfied beyond reasonable doubt after considering all the relevant circumstances that were proved at the trial that it was the appellant who raped the complainant.
  4. [20]
    It would have been an error for the trial judge to give the direction that the appellant now argues should have been given at the trial in relation to a fact that is expressed in terms that did not and could not reflect the prosecution case.

Order

  1. [21]
    The order which should be made is: Appeal dismissed.
Close

Editorial Notes

  • Published Case Name:

    R v Taufao

  • Shortened Case Name:

    R v Taufao

  • MNC:

    [2022] QCA 30

  • Court:

    QCA

  • Judge(s):

    Fraser JA, McMurdo JA, Mullins JA

  • Date:

    11 Mar 2022

Litigation History

EventCitation or FileDateNotes
Primary JudgmentDC558/19 (No citation)22 Jan 2021-
Notice of Appeal FiledFile Number: CA33/2119 Feb 2021-
Appeal Determined (QCA)[2022] QCA 3011 Mar 2022-

Appeal Status

Appeal Determined (QCA)

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