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F M T v The Queen

F M T v The Queen

Case [2011] VSCA 165 9 June 2011

Criminal Liability

Verdict Safety

Miscarriage of Justice

Admissibility of Evidence

Characterisation of Evidence

Motive

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 640 of 2009

FMT
	v
THE QUEEN

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JUDGES	BUCHANAN, NEAVE JJA and COGHLAN AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	5 May 2011
DATE OF JUDGMENT	9 June 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 165
JUDGMENT APPEALED FROM	R v [FMT] (Unreported, County Court, Judge Leckie, Date of Verdict: 25 March 2009)

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CRIMINAL – Conviction – Applicant found guilty of count of incest – Jury unable to reach verdict on two other counts of incest – Evidence – Admission of complainant’s evidence as to violent disposition of applicant towards mother – Whether failure to give direction as to use of evidence productive of miscarriage of justice – Failure to seek direction – Characterisation in prosecutor’s closing address of certain behaviour of applicant as ‘strange’ – Evidence of conduct not relied upon as consciousness of guilt – Evidence did not disclose propensity to commit incest – Whether verdict unsafe and unsatisfactory – M v The Queen (1994) 181 CLR 487; SKA v The Queen [2011] HCA 13, applied – Whether verdict inconsistent – Direction as to absence of motive to lie – R v Rodriguez [1998] 2 VR 167, applied – Application for leave to appeal against conviction refused.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr C B Boyce	Peter Clarebrough & Associates
For the Crown	Mr J D McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

I agree with Neave JA.

NEAVE JA:

The applicant was convicted of one count of incest (count 3) by a majority verdict of a County Court jury. The jury was unable to reach a verdict on two other counts of incest (counts 1 and 2) on the presentment and were discharged. The applicant now seeks leave to appeal against his conviction on count 3.

Background

Count 3 was alleged to have occurred between 1 June 2008 and 17 July 2008. The complainant was LN, a ten year old girl who was the daughter of the applicant’s de facto partner, PM. From 24 September 2006 till about the time the offence was reported to police, the applicant lived with PM, the complainant, and their two daughters, aged 2 years and 11 months, respectively. The complainant shared a bedroom with the older of the two daughters and slept on the top level of a bunk bed.

The complainant alleged the applicant would put her younger sister to bed in the bottom bunk and then climb into the upper bunk with the complainant and have intercourse with her. This behaviour had been going on since she was 9 years old. She alleged that, on the occasion leading to his conviction on count 3, he had removed her pyjamas, pulled down his tracksuit pants and had penile-vaginal intercourse with her. The complainant’s evidence was that she told him to stop and tried to push him away but that he said ‘no’ and continued. He then walked out of the room. She…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading F M T v The Queen

Details

AGLC: F M T v The Queen [2011] VSCA 165
Case: [2011] VSCA 165
Decision Date: 9 June 2011

CaseChat Overview and Summary

In the case of F M T v The Queen, the applicant was found guilty by a jury of a count of incest. The jury was unable to reach a verdict on two other counts of incest. The applicant sought leave to appeal against the conviction. The primary legal issue was whether the trial judge’s failure to provide a direction regarding the use of certain evidence led to a miscarriage of justice. Additionally, the court examined whether the prosecutor’s comments during the closing address and the characterisation of the applicant’s behaviour contributed to an unsafe and unsatisfactory verdict.

The court held that the trial judge's failure to give a direction regarding the use of the complainant’s evidence about the applicant's violent disposition towards the mother did not lead to a miscarriage of justice. The evidence was not of a kind that disclosed a propensity to commit incest and was not relied upon as evidence of consciousness of guilt. The court also found that the prosecutor’s characterisation of certain behaviour as ‘strange’ did not contribute to an unsafe and unsatisfactory verdict, as the evidence did not disclose a propensity to commit incest. The court concluded that the verdict was consistent and not affected by the absence of a motive to lie, following the principles established in R v Rodriguez.

Given the analysis of the evidence and the application of legal principles from M v The Queen and SKA v The Queen, the court found that the verdict was safe and satisfactory. Therefore, the application for leave to appeal against the conviction was refused.

Orders