R v ABF; R v MDK - [2021] QCA 240

SUPREME COURT OF QUEENSLAND

CITATION:

R v ABF; R v MDK [2021] QCA 240

PARTIES:

In CA No 106 of 2019:

R
v
ABF
(appellant/applicant)

In CA No 108 of 2019:

R
v
MDK
(appellant)

FILE NO/S:

CA No 106 of 2019
CA No 108 of 2019
DC No 56 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence
Appeal against Conviction

ORIGINATING COURT:

District Court at Maroochydore – Date of Conviction: 28 March 2019; Date of Sentence: 18 April 2019 (Long SC DCJ)

DELIVERED ON:

12 November 2021

DELIVERED AT:

Brisbane

HEARING DATE:

19 April 2021

JUDGES:

McMurdo and Mullins JJA and Bradley J

ORDERS:

In CA No 106 of 2019:

1.   Appeal against conviction dismissed.

2.   Application for appeal against sentence granted.

3.   Appeal allowed.

4.   Substitute the following terms of imprisonment for those imposed by the sentencing judge on 18 April 2019:

Count 19        Ten years

Count 23        Three years

Count 25        Four years

Count 26        Eight years

Count 27        Eight years

Count 28        Eight years

5.   The orders otherwise made by the sentencing judge on 18 April 2019 are confirmed.

In CA No 108 of 2019:

1.    Appeal against conviction dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the male appellant was tried before a jury and convicted of numerous sexual offences committed against three child complainants under 12 years and under his care – where the female appellant was tried on the same indictment and convicted of sexual offences in respect of which she was charged jointly with the male appellant that were committed against the third complainant under her care who was her daughter– where the male appellant was the father of the first and second complainants – where there was evidence the first and second complainants discussed the male appellant’s sexual offending with their mother and each other – where the first complainant was interviewed for four s 93A statements – where the second complainant was interviewed for three s 93A statements – where each of the first and second complainants gave evidence of what she could remember of the incidents on which she was cross-examined – where the third complainant was around five years old when interviewed for her first and second s 93A statements – where the third complainant in both interviews gave graphic descriptions of sexual practices – where the third complainant conceded at the conclusion of her cross-examination that she could not remember anything that she had spoken about in her s 93A statements – where the verdicts of guilty on some counts relied upon evidence of a witness other than the relevant complainant who did not give evidence about the particular incident – whether multiple charges were brought by the prosecution due to inconsistencies in the evidence of the third complainant – whether the guilty verdicts were unreasonable or unsupported by the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL…

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 R v ABF; R v MDK

Details

AGLC: R v ABF; R v MDK [2021] QCA 240
Case: [2021] QCA 240
Decision Date: 12 November 2021

CaseChat Overview and Summary

In the Court of Appeal, two appellants, ABF and MDK, were convicted of multiple sexual offences against child complainants under their care. ABF was convicted of offences against three complainants, two of whom were his biological daughters. MDK was convicted of offences against her daughter, who was also under her care. The appellants challenged their convictions and sentences, claiming the verdicts were unreasonable or unsupported by the evidence, and the sentences were excessive. The court examined whether the verdicts were unreasonable or unsupported by the evidence, considering inconsistencies in the testimony of the third complainant. The court found that the jury's verdicts were not unreasonable or unsupported by the evidence.

The court also considered whether the trial judge erred in the joint trial of the appellants and the conduct of the female appellant's defence counsel. The court determined that the trial judge did not err in his directions to the jury, and the female appellant's counsel did not act unreasonably in failing to subpoena records from an aquatic centre or challenge the credibility of the mother by reference to a domestic violence order. The court found that the female appellant's counsel's conduct was not deficient.

The court examined the appellants' appeals against their sentences, finding that the female appellant's sentence was manifestly excessive. The court allowed the appeal against sentence for the female appellant and substituted the terms of imprisonment for those imposed by the sentencing judge. The male appellant's appeal against sentence was dismissed.

The court dismissed the appeals against conviction for both appellants and allowed the female appellant's appeal against sentence. The court substituted the terms of imprisonment for the female appellant and confirmed the orders made by the sentencing judge for the male appellant.

Orders

Orders of the court

In CA No 106 of 2019:

1. Appeal against conviction dismissed.

2. Application for appeal against sentence granted.

3. Appeal allowed.

4. Substitute the following terms of imprisonment for those imposed by the sentencing judge on 18 April 2019:

Count 19 Ten years

Count 23 Three years

Count 25 Four years

Count 26 Eight years

Count 27 Eight years

Count 28 Eight years

5. The orders otherwise made by the sentencing judge on 18 April 2019 are confirmed.

In CA No 108 of 2019:

1. Appeal against conviction dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Both appellants rely on the ground the verdicts of guilty are unreasonable and cannot be supported having regard to the evidence. In addition, the female appellant appeals on a ground of inadequate defence which is directed at failures of her trial counsel to act on her instructions. The ground of appeal for which the female appellant is represented relates to count 25 and alleges that the learned primary judge should have directed the jury that certain evidence was inadmissible in relation to that count, if the jury were considering whether the female appellant was guilty of that offence as a principal.Summary of the relevant evidence for each count I will refer to the complainants in the order in which the counts relate to them respectively as A, B and C. A and B are the biological daughters of the male appellant and I will refer to their mother as “the mother”. The male appellant and the mother lived under the same roof and their daughters joined the family unit, as each was born. A was born in September 2005 and B was born in February 2008. The relationship between the male appellant and the mother became open with each free to take other sexual partners. The female appellant together with her daughter C, who was born in October 2007, commenced living in the same household probably in late 2011, when the appellants were in a relationship by that stage, although the male appellant remained in a relationship with the mother. The mother ended her relationship with the male appellant and left the household, taking her daughters with her, about the middle of 2013. For the purpose of the assistance of the jury during the trial the prosecution prepared a particulars of evidence document (MFI Q) which identified the allegations of evidence called in support of each count. That document divided the counts into 16 incidents. The prosecution prepared another document entitled “Abbreviated Particulars with Evidence Cross-references” (MFI X) which was used by the prosecutor during his address to the jury and was also referred to by the primary judge. There was no dispute at the trial that each complainant was under 12 and under care, A and B are lineal descendants of the male appellant, C is a lineal descendant of the female appellant, the conduct alleged was indecent and unlawful, and both appellants were adults. The issue at trial was whether any of the alleged conduct occurred and, more particularly, whether the prosecution could exclude the possibility that the evidence of each of the complainants had been tainted by communications from others. Neither appellant gave nor called evidence. Admissions were made at the trial as to the tenancy agreements entered into by various combinations of the mother and the male and female appellants and the mother was also able to give evidence of the timing of the household’s moves from one residence to another that was of assistance in assessing some aspects of the evidence of the complainants. The male appellant, the mother, A and B lived at a unit for 12 months between 25 June 2010 and 25 June 2011, when they moved to a house. It was at that house that the female appellant and C joined the household. The entire household then moved to another house on 26 May 2012. I will refer to these two houses where the entire household lived together as respectively the first residence and the second residence. The tenancy for the second residence ended on 2 June 2013 and while waiting the confirmation for a tenancy at another property, the mother was staying at her father’s place and the mother then ended her relationship with the male appellant and moved away, taking her children with her. The appellants and C moved into the new rental house for which the tenancy commenced on 1 July 2013 which was the house at which C lived with the appellants only and from which she was taken into care on 16 October 2013. According to the female appellant’s mother, C stayed at her grandparents’ home around June or July 2013 for around five weeks. During that period neither appellant stayed at the grandparents’ home with C. C commenced attending primary school in 2013 whilst the household was at the second residence and remained enrolled at that school throughout 2013.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v ABF; R v MDK [2021] QCA 240
PARTIES:	In CA No 106 of 2019: R v ABF (appellant/applicant) In CA No 108 of 2019: R v MDK (appellant)
FILE NO/S:	CA No 106 of 2019 CA No 108 of 2019 DC No 56 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence Appeal against Conviction
ORIGINATING COURT:	District Court at Maroochydore – Date of Conviction: 28 March 2019; Date of Sentence: 18 April 2019 (Long SC DCJ)
DELIVERED ON:	12 November 2021
DELIVERED AT:	Brisbane
HEARING DATE:	19 April 2021
JUDGES:	McMurdo and Mullins JJA and Bradley J
ORDERS:	In CA No 106 of 2019: 1. Appeal against conviction dismissed. 2. Application for appeal against sentence granted. 3. Appeal allowed. 4. Substitute the following terms of imprisonment for those imposed by the sentencing judge on 18 April 2019: Count 19 Ten years Count 23 Three years Count 25 Four years Count 26 Eight years Count 27 Eight years Count 28 Eight years 5. The orders otherwise made by the sentencing judge on 18 April 2019 are confirmed. In CA No 108 of 2019: 1. Appeal against conviction dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the male appellant was tried before a jury and convicted of numerous sexual offences committed against three child complainants under 12 years and under his care – where the female appellant was tried on the same indictment and convicted of sexual offences in respect of which she was charged jointly with the male appellant that were committed against the third complainant under her care who was her daughter– where the male appellant was the father of the first and second complainants – where there was evidence the first and second complainants discussed the male appellant’s sexual offending with their mother and each other – where the first complainant was interviewed for four s 93A statements – where the second complainant was interviewed for three s 93A statements – where each of the first and second complainants gave evidence of what she could remember of the incidents on which she was cross-examined – where the third complainant was around five years old when interviewed for her first and second s 93A statements – where the third complainant in both interviews gave graphic descriptions of sexual practices – where the third complainant conceded at the conclusion of her cross-examination that she could not remember anything that she had spoken about in her s 93A statements – where the verdicts of guilty on some counts relied upon evidence of a witness other than the relevant complainant who did not give evidence about the particular incident – whether multiple charges were brought by the prosecution due to inconsistencies in the evidence of the third complainant – whether the guilty verdicts were unreasonable or unsupported by the evidence CRIMINAL LAW – APPEAL AND NEW TRIAL…