R v IG - [2019] QCA 208

SUPREME COURT OF QUEENSLAND

CITATION:

R v IG [2019] QCA 208

PARTIES:

R
v
IG
(appellant)

FILE NO/S:

CA No 31 of 2019
DC No 217 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 13 February 2019 (Clare SC DCJ)

DELIVERED ON:

11 October 2019

DELIVERED AT:

Brisbane

HEARING DATE:

19 September 2019

JUDGES:

Fraser and Gotterson and Morrison JJA

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – MISCELLANEOUS OFFENCES – OTHER MISCELLANEOUS OFFENCES AND MATTERS – REMOVAL OF CHILD FROM STATE FOR FEMALE GENITAL MUTILATION – where the appellant took her two daughters to Somalia in which a procedure to excise the clitoral hood was performed on them – where the two daughters were examined by a paediatrician – where it was confirmed by medical examination that an excision procedure had taken place – where the appellant was convicted of two counts of removal of a child from Queensland for female genital mutilation, with the aggravating circumstance of being a domestic violence offence – where the two daughters initially gave evidence detailing what had happened to them in Somalia but later retracted it stating that nothing had happened to them – where the two daughters were allegedly bribed by a step-sister to give evidence against their mother – where the appellant challenges her conviction on two grounds – whether the verdict was reasonable – whether there has been a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant challenges her conviction on the ground that the verdict was unreasonable and could not be supported having regard to the evidence – where the appellant challenges her conviction on the ground that there has been a miscarriage of justice because the jury was not adequately instructed about the effect of the two daughter’s retracted evidence and the use they could make of the medical evidence – where the two daughters stated that they had a procedure in Somalia but retracted that evidence saying that no procedure had taken place in Somalia – where the reliability of the evidence of the two daughters was called into question – whether the verdict was unreasonable – whether there has been a miscarriage of justice

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, cited
R v PBA[2018] QCA 213, cited

COUNSEL:

R M O’Gorman with R C Taylor for the appellant (pro bono)
D Balic for the respondent

SOLICITORS:

Wallace O’Hagan Lawyers for the appellant (pro bono)
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: I agree with the reasons for judgment of Morrison JA and the order proposed by his Honour.
GOTTERSON JA: I agree with the order proposed by Morrison JA and with…

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 IG

Details

AGLC: R v IG [2019] QCA 208
Case: [2019] QCA 208
Decision Date: 11 October 2019

CaseChat Overview and Summary

In the case of R v IG, the appellant was convicted of two counts of removal of a child from Queensland for female genital mutilation, with the aggravating circumstance of being a domestic violence offence. The appellant took her two daughters to Somalia where a procedure to excise the clitoral hood was performed on them. The appellant challenges her conviction on two grounds, firstly that the verdict was unreasonable and could not be supported having regard to the evidence, and secondly that there has been a miscarriage of justice because the jury was not adequately instructed about the effect of the two daughters’ retracted evidence and the use they could make of the medical evidence. The appeal was dismissed by the court.

The legal issues the court was required to decide were whether the verdict was unreasonable and whether there had been a miscarriage of justice. The court held that the verdict was not unreasonable and that there had not been a miscarriage of justice. The court found that the evidence of the two daughters was unreliable, and that there was other evidence in the form of medical evidence and admissions by the appellant that supported the verdict. The court also found that the jury had been adequately instructed about the effect of the two daughters' retracted evidence and the use they could make of the medical evidence.

The court's reasoning was that the evidence of the two daughters was unreliable, and that there was other evidence that supported the verdict. The court found that the medical evidence showed that an excision procedure had taken place, and that the appellant had admitted to taking the two daughters to Somalia for the purpose of having the procedure performed. The court also found that the jury had been adequately instructed about the effect of the two daughters' retracted evidence and the use they could make of the medical evidence. The court held that the verdict was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offence of which she was convicted.

The final orders of the court were that the appeal be dismissed. The court found that all grounds of the appeal had failed, and that the conviction should stand. The appellant's challenge to her conviction was unsuccessful.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Further, as was said by this court in R v PBA,[8] in the course of elucidating the applicable principles:“The question is not whether there is as a matter of law evidence to support the verdict. Even if there is evidence upon which a jury might convict, the conviction must be set aside if ‘it would be dangerous in all the circumstances to allow the verdict of guilty to stand’. The Court is required to make an independent assessment of the sufficiency and quality of the evidence at trial and decide whether, upon the whole of the evidence, it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offence of which he was convicted.”[8][2018] QCA 213 at [80].Evidence at the trial Evidence at the trial came from a variety of witnesses. First, the interviews of AKD and ASI were admitted under s 93A of the Evidence Act 1977 (Qld) and their pre-recorded oral evidence was admitted under s 21AK of that Act. Others included the doctor, the girls’ step-sisters, the investigating police officer and a Child Safety officer.[9] Also in evidence was the recorded police interview with the appellant. Finally, the parties made some formal admissions.[9]In these reasons I intend to refer to the step-sisters as SIS1 and SIS2. AKD’s evidence was that she, ASI and the appellant, had recently been on a holiday to Somalia, where they stayed with her grandmother. A couple of days after they got there a woman came to the house and she and ASI had something done to them. She was told nothing beforehand and though she was awake at the time she did not know what it was. It happened “where I pee”, and hurt for two to three days, and when she went to the toilet. ASI said that they stayed with the grandmother and it happened “when we first went in there”. She was not told anything in advance. She was awake at the time but could not say what was done. She had been upset when it was done. It hurt for about three days. In oral evidence AKD retracted her account to police. She said that while in Somalia she had not been cut on any part of her body, nor did a lady come to the house, nor was she sore when she peed. She explained that she lied to police because her step-sister (SIS1) had bribed her to do so, offering $50 and an iPhone. In oral evidence ASI said she did not have an operation in Somalia, nor did anyone cut her on any part of her body. She explained being upset as because she had a skin rash. ASI recalled SIS1 coming over to their house after they got back from Somalia, and taking ASI and AKD into their room. SIS1 “… told us to do that and agree everything what the police said, and, ‘I’ll give you an iPad and $50’, but I wasn’t listening”. When asked if she had said what she said in the police interview because of what SIS1 said to her, ASI said “No, I wasn’t listening what she said” Dr Mills examined both AKD and ASI on 26 November 2015. He took a history from the girls. AKD told him it happened near the beginning of their time in Somalia. AKD said she had bleeding for a day, and she had been in pain for three days. ASI agreed.

Decision

Reasons for decision

This ground fails.Conclusion As all grounds have failed, the appeal must be dismissed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v IG [2019] QCA 208
PARTIES:	R v IG (appellant)
FILE NO/S:	CA No 31 of 2019 DC No 217 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 13 February 2019 (Clare SC DCJ)
DELIVERED ON:	11 October 2019
DELIVERED AT:	Brisbane
HEARING DATE:	19 September 2019
JUDGES:	Fraser and Gotterson and Morrison JJA
ORDER:	The appeal is dismissed.
CATCHWORDS:	CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – MISCELLANEOUS OFFENCES – OTHER MISCELLANEOUS OFFENCES AND MATTERS – REMOVAL OF CHILD FROM STATE FOR FEMALE GENITAL MUTILATION – where the appellant took her two daughters to Somalia in which a procedure to excise the clitoral hood was performed on them – where the two daughters were examined by a paediatrician – where it was confirmed by medical examination that an excision procedure had taken place – where the appellant was convicted of two counts of removal of a child from Queensland for female genital mutilation, with the aggravating circumstance of being a domestic violence offence – where the two daughters initially gave evidence detailing what had happened to them in Somalia but later retracted it stating that nothing had happened to them – where the two daughters were allegedly bribed by a step-sister to give evidence against their mother – where the appellant challenges her conviction on two grounds – whether the verdict was reasonable – whether there has been a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant challenges her conviction on the ground that the verdict was unreasonable and could not be supported having regard to the evidence – where the appellant challenges her conviction on the ground that there has been a miscarriage of justice because the jury was not adequately instructed about the effect of the two daughter’s retracted evidence and the use they could make of the medical evidence – where the two daughters stated that they had a procedure in Somalia but retracted that evidence saying that no procedure had taken place in Somalia – where the reliability of the evidence of the two daughters was called into question – whether the verdict was unreasonable – whether there has been a miscarriage of justice M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, cited R v PBA[2018] QCA 213, cited
COUNSEL:	R M O’Gorman with R C Taylor for the appellant (pro bono) D Balic for the respondent
SOLICITORS:	Wallace O’Hagan Lawyers for the appellant (pro bono) Director of Public Prosecutions (Queensland) for the respondent