R v ABF; R v MDK

Case [2023] QCA 171

SUPREME COURT OF QUEENSLAND

CITATION:

R v ABF; R v MDK [2023] QCA 171

PARTIES:

In CA No 268 of 2021:

R
v
ABF
(appellant)

In CA No 289 of 2021:

R
v
MDK
(appellant/applicant)

FILE NOS:

CA No 268 of 2021
CA No 289 of 2021
DC No 434 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction
Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Maroochydore – Date of Convictions and Sentence: 20 October 2021 (Cash KC DCJ)

DELIVERED ON:

25 August 2023

DELIVERED AT:

Brisbane

HEARING DATE:

17 July 2023

JUDGES:

Flanagan and Boddice JJA and Bradley J

ORDERS:

In CA No 268 of 2021:

1.   The appeal against conviction be dismissed.

In CA No 289 of 2021:

1.   The appeal against conviction be dismissed.

2.   Leave to appeal against sentence be refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where MDK (“MDK”) and ABF (“ABF”) were convicted by jury of sexual offences with respect to two female complainants, aged between 14 and 15 years – where both appellants appeal their convictions on the ground that the verdicts were unreasonable – where MDK also appeals his conviction on the ground that his case was not accurately and fairly put to the jury – where it is contended by the appellants that the evidence given by the complainants at trial was not credible – whether the verdicts of guilty were unreasonable having regard to all of the evidence – whether the trial judge’s summing up failed to adequately present the defence case

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where MDK was sentenced to an effective head sentence of 2 years imprisonment on a count of maintaining a sexual relationship with a child, and lesser concurrent terms of imprisonment on the remaining counts – where those sentences were ordered to be served cumulatively on sentences presently being served by him – where the existing sentence was one of 16 years and 8 months imprisonment for 26 sexual offences against three separate female complainants, over a period of five years – where the complainants were two of MDK’s biological daughters and ABF’s biological daughter – where both sets of offending were committed at about the same time – where the sentencing judge made an explicit reduction of the sentence to be imposed on account of the sentence presently being served – whether, having regard to the principle of totality, the sentences imposed were manifestly excessive

Criminal Code (Qld), s 208

Dansie v The Queen (2022) 96 ALJR 728; (2022) 298 A Crim R 134; [2022] HCA 25, cited
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, cited
R v Deen [1964] Qd R 569, cited
R v PAZ [2018]…

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Details
AGLC
R v ABF; R v MDK [2023] QCA 171
Case
[2023] QCA 171
Decision Date

CaseChat Overview and Summary

In the case of R v ABF and R v MDK, the appellants were convicted by jury of various sexual offences related to two female complainants, aged between 14 and 15 years at the time of the offences. The appellants sought to appeal their convictions, with ABF arguing that her verdict was unreasonable and MDK arguing both that his verdict was unreasonable and that his case was not accurately and fairly put to the jury. MDK also appealed against his sentence on the grounds that it was manifestly excessive. The central legal issues for the court to determine were whether the verdicts were unreasonable having regard to the evidence, and whether the trial judge's summing up failed to adequately present the defence case. Additionally, the court had to assess whether MDK's sentence was manifestly excessive.

The court found that the evidence given by the complainants was consistent and reliable, and there was independent evidence to support the circumstances of the appellants' interactions with the complainants. The court concluded that it was open to the jury to find that MDK was guilty of each of the offences beyond a reasonable doubt, and that the trial judge's summing up did not fail to adequately present the defence case. The court further found that the sentence imposed on MDK was not manifestly excessive, taking into account the principle of totality and the sentence he was already serving.

In summary, the appeals against conviction were dismissed, and leave to appeal against sentence was refused. The court upheld the convictions and sentences imposed on the appellants.

Orders

Orders of the court

In CA No 268 of 2021:

1. The appeal against conviction be dismissed.

In CA No 289 of 2021:

1. The appeal against conviction be dismissed.

2. Leave to appeal against sentence be refused.

Background

Background to the litigation

ABF relies on one ground for her appeal against conviction, namely that the verdict is unreasonable and cannot be supported having regard to the whole of the evidence.Background All of the offences were committed in 2012 and 2013. At the relevant time, MDK and ABF were in a relationship. In the case of MDK, the count of maintaining a sexual relationship with a child under 16 (count 1), three of the counts of carnal knowledge of a child under 16 (counts 2, 10 and 13), eight of the counts of indecent treatment of a child under 16 (counts 3–9 and 11) and the count of sodomy (count 12), pertained to the same female child complainant, AP, who was aged 14 to 15 years. Those offences were committed between 1 January 2012 and 29 April 2013. ABF’s five counts of indecent treatment of a child under 16 (counts 4, 5, 8, 9 and 11), were charged jointly with MDK and pertained to AP. The four remaining counts of indecent treatment of a child under 16 (counts 14, 16, 17 and 18) and the two remaining counts of carnal knowledge of a child under 16 (counts 15 and 19), of which MDK was convicted, related to a separate female child complainant, SK. Those offences were committed between 1 January 2013 and 31 May 2013, when SK was aged 14 to 15 years. A central issue for determination at trial was whether there was evidence which established, on the balance of probabilities, a belief by MDK and/or ABF, on reasonable grounds, that each complainant was 16 years or over.Counts At trial, the Crown particularised the prosecution case in the following terms. Count 1 was particularised as MDK, between 1 January 2012 and 29 April 2013, maintaining a relationship with AP, when she was under the age of 16 years and that during this period he committed more than one unlawful sexual act namely, the acts giving rise to each of counts 2–13, together with uncharged acts of penetration of AP’s genitals, anus or mouth with his penis; bringing his mouth into contact with her genitalia; causing or permitting AP’s mouth to come into contact with his genitals; wilfully exposing AP to indecent acts namely, penetrating the genitalia or anus of ABF with his penis; aiding or encouraging ABF to bring her mouth into contact with AP’s genitalia; and aiding or encouraging ABF to penetrate the genitalia of AP with her finger or fingers. Count 2 was referred to as the “motel room incident” and particularised as one night in about March 2012, when MDK and ABF collected both AP and SK and took them to a nearby motel. Whilst in that motel, MDK touched AP’s body with his hand or hands, including on her breasts and kissed her, before positioning himself in front of her and penetrating her genitalia with his penis, as well as positioning himself behind her and penetrating her genitalia with his penis. Count 3 was particularised as MDK, in early 2012, before AP had turned 15, taking her to a nudist beach and then to a motel where MDK and AP were naked together in the shower recess, before MDK kissed and licked her genitals with his mouth and tongue.

Evidence

Evidence Before The Court

Counts 17–19 were particularised as having occurred in April or May 2013, at the time of a birthday celebration for MDK. MDK masturbated himself before kissing SK and penetrating her genitalia with a finger or fingers (count 17). SK then performed oral sex upon MDK (count 18), before MDK penetrated her genitalia with his penis (count 19). These counts were referred to at trial as the “birthday party incident”.Evidence AP gave a statement to police on 10 November 2013. It was read to the jury. AP said she met MDK on a beach on the Sunshine Coast when she was in grade 9 and aged 14 years. As she was leaving the beach, she dropped her iPod and MDK’s then-wife, LD, gave it back to her. LD invited her to a house party the following weekend. AP said she would need to find a way up to the Sunshine Coast. LD gave her the Facebook names of LD and of MDK to contact to organise transport. The next day, AP sent two Facebook friend requests to MDK and his wife, which were accepted. Whilst she did not go to the party, she remained friendly with them on Facebook, seeing what they were doing and liking their posts. On Facebook, AP had the day and month of her birthday and photographs of AP wearing a school uniform. Her Facebook status also indicated her attending a high school in 2011. Around March 2012, AP received an inbox message on Facebook from LD. LD invited AP and her friend, SK, to their house on the Sunshine Coast for drinks. AP said they needed transport. LD replied instantly, saying ABF would pick them up and MDK would be in the car with her. AP said she did not tell her guardian, SS, with whom she was living, that she and SK were going to the Sunshine Coast. She told him she was visiting a friend’s house. She sent a message to LD, via Facebook, arranging to meet at the nearby shops. ABF and MDK drove them to the Sunshine Coast. MDK brought out some “joints and Alize and Sprit” which AP and SK shared during the drive.[1] AP spoke to MDK about how SS thought she was staying at her mother’s house that night, because “I would have got in trouble with [SS] and school”.[2][1]AB 271 at [15].[2]AB 271 at [15]. AP said the residence on the Sunshine Coast was a granny flat. MDK decided they should go to a motel as there was not enough room. LD did not come to the motel. She remained with the children. ABF drove MDK, AP and SK to the motel. ABF left saying she would pick them up the next day. Early the next morning, MDK woke AP asking if she wanted “a puff of joint”.[3] She followed MDK into the bedroom and puffed on the joint. MDK started feeling her legs and breasts before kissing her on the mouth and putting his tongue inside her mouth. MDK then used both hands to remove her underwear. She saw his erect penis. He was not wearing a condom. She felt his penis penetrate her vagina. MDK was kissing her at the same time. After a couple of minutes, MDK withdrew his penis, turned AP over placing her on her hands and knees, then pushed his erect penis back inside her vagina. MDK said, “I’m coming” and she felt a warm rush inside her vagina (count 2).[3]AB 272 at [25].

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

A ground of appeal that a trial judge’s summing up failed to adequately present the defence case, requires a consideration of the summing up, in the context of the issues at trial and its entirety.[25] Where, as here, the appellant was represented by counsel and no re-direction was sought, such a ground of appeal will only succeed if the appellate court is satisfied that there has been a miscarriage of justice, in that the appellant was deprived of a fair chance of acquittal.Consideration[25]R v Deen [1964] Qd R 569 at [4].MDK’s conviction appeal Whilst MDK submits that the evidence of AP and SK contained discrepancies which called into question their reliability and credibility, and further, that the evidence supported a conclusion, on the balance of probabilities, that he had a belief, on reasonable grounds, that both AP and SK were over the age of 16 years, a consideration of the evidence as a whole, supports a conclusion that it was open for a jury to find that MDK was guilty of each of the offences, beyond a reasonable doubt. First, both AP and SK were consistent in their evidence. Each gave direct evidence supportive of the particulars for each of the counts preferred against MDK. Neither’s account was shaken in any material way in cross-examination such that there is no proper basis to conclude a jury ought to have entertained a reasonable doubt as to either’s reliability and credibility. Second, there was independent evidence to support the circumstances of AP and SK being in the company of MDK and ABF, including as to the circumstances in which AP first met them and as to the contact between them thereafter, including that AP and SK travelled regularly to stay with them. Third, there was evidence from which it could be concluded that it was more probable than not that MDK did not have a belief, on reasonable grounds, that either AP or SK was over 16 years of age. The fact that each of their Facebook profiles had posts consistent with their regular usage of alcohol and illicit drugs, that both AP and SK regularly brought alcohol and cigarettes and attended a nudist beach, and, in the case of SK, a date of birth suggestive of her being over the age of 16 years, had to be balanced against the remaining evidence. In particular, that remaining evidence included SS’s evidence as to the youthfulness of AP’s appearance and RC’s evidence, albeit challenged in cross-examination, of an express conversation with a male and a female, to the effect they were 13 and 14 years of age. MDK submits that conversation could not have occurred because at the time RC said the conversation occurred, SK was already 14 years of age and AP was older. That was ultimately a matter for the jury, when assessing RC’s reliability. It was open for the jury to accept RC’s evidence as to the conversation and as to MDK’s presence at the time of it, but find her memory as to its timing to be mistaken. A conclusion that RC was mistaken as to the timing did not compel a conclusion that it was not open to the jury to accept RC’s evidence as to this conversation as reliable and credible.