R v M

[2001] QCA 458

SUPREME COURT OF QUEENSLAND

CITATION:

R v M  [2001] QCA 458

PARTIES:

R
v
M
(appellant)

FILE NO/S:

CA No 126 of 2001
DC No 1198 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

26 October 2001

DELIVERED AT:

Brisbane

HEARING DATE:

1 October 2001

JUDGES:

McPherson JA, Jones and Mullins JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Appeal allowed.  Set aside verdicts on counts 1 to 4.  In lieu, enter verdicts and judgments of acquittal on each of those counts

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL ALLOWED – where Crown entered nolle presequi in respect of one of five counts on the indictment – whether the complainant’s evidence could sustain the verdicts of guilty

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – OTHER OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – BUGGERY AND INDECENT ASSAULT OR DEALING – PROOF AND EVIDENCE

Jones v The Queen (1997) 191 CLR 439, considered
M v The Queen (1994) 181 CLR 487, applied
R v Aristidis [1999] 2 Qd R 629, considered
R v Markuleski [2001] NSWCCA 290, applied

COUNSEL:

A J Rafter for the appellant
B G Campbell for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. McPHERSON JA: The appellant was brought to trial earlier this year on five counts of indecently dealing with his stepdaughter between May 1983 and January 1984. At the trial the judge ruled that there was, on the evidence adduced by the prosecution, no case for the defence to answer on count 5.  After that ruling, the Crown entered a nolle prosequi in respect of that count, but the appellant was found guilty of each of the other four charges in counts 1 to 4 of the indictment.

1. The complainant was born on 16 July 1970 and the incident the subject of count 1 was alleged to have occurred at about the time of her thirteenth birthday in 1983. At that time, the complainant, her mother, her brothers and half brothers or sisters and the appellant were living in a recently completed house near Brisbane. The complainant’s mother was working long hours, which meant that at times the complainant was at the house alone with the appellant and the other children.  In February 1986 the mother was imprisoned for drug trafficking, and in about July of that year the appellant engaged another woman to act as babysitter or carer for the young children. Not surprisingly under these stresses, the marriage broke down; the appellant formed a relationship with the other woman, and they now live together as man and wife.

1. There was some evidence at the trial of a division in the ranks of the family members…