MZ v The Queen

Case [2020] ACTCA 41


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

MZ v The Queen

Citation:

[2020] ACTCA 41

Hearing Date:

6 May 2020

DecisionDate:

20 August 2020

Before:

Murrell CJ, Burns and Loukas-Karlsson JJ

Decision:

Leave granted, appeal allowed, retrial ordered.

Catchwords:

APPEAL AND NEW TRIAL – EVIDENCE – Directions to the Jury – Appeal from conviction – Whether trial judge misdirected the jury in relation to mistaken belief as to consent – Whether inadequate directions were given in relation to failure to give evidence – Whether trial judge had jurisdiction in relation to transferred charge

Legislation Cited:

Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 80D

Court Procedures Rules 2006 (ACT) r 5531
Magistrates Court Act 1930 (ACT) ss 88B, 90A(7), 90B
Medicines, Poisons, and Therapeutic Goods Act 1933 (ACT) s 37(1)
Sexual Offences (Amendment) Act 1976 (UK) s 1

Supreme Court Act 1933 (ACT) ss 37O, 68CA, 68D, 68E; pt 8

Cases Cited:

Azzopardi v The Queen [2001] HCA 25; 205 CLR 50

BI v The Queen (No 2) [2018] ACTCA 11
Director of Public Prosecutions (NT) v WJI [2004] 47; 219 CLR 43
Director of Public Prosecutions v Morgan [1976] AC 182
Gul v The Queen [2017] VSCA 153
Hei Hei v R; R v Hei Hei [2009] NSWCCA 87
KB v The Queen [2013] VSCA 137
Kirby v MZ [2019] ACTSC 327
Marsh v The Queen [2018] ACTCA 55
Munro v The Queen [2014] ACTCA 11
Papakosmas v The Queen [1999] HCA 37; 196 CLR 297
Pereira v Director of Public Prosecutions [1988] HCA 57; 63 ALJR 1
R v Aleer [2016] ACTSC 75
R v Getachew [2012] HCA 10; 248 CLR 22
R v Lopez-Alonso (1996) 86 A Crim R 270
R v Loulanting [2015] ACTSC 172
R v Mahoney [2000] NSWCCA 256; 114 A Crim R 130
R v McMahon (No 2) [2017] ACTSC 29
R v Moore; Ex parte Graham (1977) 138 CLR 164
Sidaros v The Queen [2020] ACTCA 11; 15 ACTLR 64
Stevens v The Queen [2018] ACTCA 7
Strbak v The Queen [2020] HCA 10; 94 ALJR 374
Thompson v The Queen (No 2) [2016] ACTCA 47

UQ v The Queen [2019] ACTCA 23; 14 ACTLR 172

Texts Cited:

Explanatory Statement, Evidence (Miscellaneous Provisions) Bill 2003 (ACT)

J.C. Smith and Brian Hogan, Criminal Law (LexisNexis UK, 10th ed, 2002)

Parties:

MZ ( Appellant)

The Queen ( Respondent)

Representation:

Counsel

S Odgers SC ( Appellant)

S Drumgold SC ( Respondent)

File Number:

ACTCA 51 of 2019

Decision under appeal:

Decision under appeal:

Court/Tribunal:             Supreme Court of the ACT

Before:  Mossop J

Date of Decision:          3 December 2019

Case Title:  Kirby v MZ

Citation: [2019] ACTSC 327

Court/Tribunal:             Supreme Court of the ACT

Before:  Mossop J

Date of Decision:          6 December 2019

Case Title:  R v MZ

Citation: [2019] ACTSC 341

THE COURT:

Introduction

  1. Following a trial before Mossop J (the trial judge) and a jury, on 14 October 2019, the appellant…

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MZ v The Queen [2020] ACTCA 41
Case
[2020] ACTCA 41
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory, constituted by Murrell CJ, Burns and Loukas-Karlsson JJ, considered an appeal by MZ against his conviction for sexual intercourse without consent, where he was reckless as to whether the complainant consented. The prosecution's case was that the appellant had engaged in sexual intercourse with his estranged wife in her bedroom in the early hours of 17 August 2018, despite her clear indications that she did not consent. The defence at trial suggested that the complainant had initiated the sexual contact and had appeared to enjoy it until she indicated she wanted it to stop, at which point the appellant desisted.

The appeal raised two grounds: first, whether the trial judge erred in the directions given to the jury regarding a mistaken belief as to consent, contrary to section 80D of the *Evidence (Miscellaneous Provisions) Act 1991* (ACT); and second, whether inadequate directions were provided concerning the appellant's failure to give evidence at trial. A significant procedural hurdle was Rule 5531 of the *Court Procedures Rules 2006* (ACT), which generally requires objections to be taken at trial to allow grounds of appeal relating to directions or the admission/rejection of evidence. The appellant's counsel had not objected to the directions at trial, stating he had overlooked the issues.

The Court acknowledged the strict approach taken to Rule 5531, designed to prevent "armchair appeals" where errors are identified only after reviewing the trial transcript. However, despite the failure to object at trial, the Court granted leave to appeal on both grounds. This decision was based on the assessment that an error in either direction could have potentially led to a miscarriage of justice, thereby supporting the conviction. The Court found that while counsel's reasons for not seeking redirection were not conclusive, the potential impact of the alleged misdirections on the jury's verdict warranted further consideration.

Leave to appeal was granted, the appeal was allowed, and a retrial was ordered.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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