R v M - [1995] QCA 283

THE COURT OF APPEAL [1995] QCA 283

SUPREME COURT OF QUEENSLAND

C.A. No. 78 of 1995

Brisbane

[R. v. M]

THE QUEEN

v.
M

Appellant

McPherson J.A.
de Jersey J.
Ambrose J.

Judgment delivered 23/06/1995

Judgment of the Court

APPEAL AGAINST CONVICTION DISMISSED.

CATCHWORDS:	CRIMINAL LAW - INCEST; whether trial Judge misdescribed one of the principal defence submissions to the jury; whether trial Judge erred in directing the jury that the complainant and her mother would be wicked if they were making and persisting with false allegations.
Counsel:	Mr. A. J. Glynn for the apellant Mrs. L. Clare for the respondent
Solicitors:	Legal Aid Office for the appellant
Director of Public Prosecutions (Queensland) for the respondent

Hearing Date: 20 April 1995

REASONS FOR JUDGMENT - THE COURT
Judgment delivered the 23rd day of June 1995

The appellant was convicted on three counts of incest committed upon his daughter, who was aged between 9 and 10 years at the time. Two occurred while the family lived together, and the third on Christmas Day, 1993 during a visit by the complainant and her mother to the family home after the appellant and his wife had separated.

The evidence against the appellant comprised essentially the evidence of the complainant, but with some supporting evidence, from her brother, R of observations of events which tended to give support to particular allegations she made, and medical evidence confirming that there had been some form of penetration of her sexual organs at some time.
The first count concerned events which occurred in a work area adjacent to an office at the home. The complainant said that the appellant put her onto a carpenter's work horse and penetrated her. Her shorts and pants were completely off, and her feet were on the ground. She demonstrated the separated width of her legs at 9 to 12 inches. Upon penile penetration, the complainant said that the appellant moved "up and down". When asked to explain what she meant by that term she demonstrated a back and forwards motion. Soon after the intercourse, the appellant's son, R appeared. The complainant said that she was then facing the appellant with her back to R.

The appellant apparently saw R approaching them. The appellant pushed the complainant into a small room near to the office, and kicked her clothes in after her. The appellant's fly was still apparently undone, and the complainant heard him say, "Do you know why the zip keeps going down?", to which R replied, "No". The supporting evidence from R comprised his account of an occasion in 1993, one plainly infers the same one, on which he ran downstairs to use the computer. The complainant and the appellant were facing each other. The complainant ran quickly to the storage room. R did not have a chance to notice whether she was fully clothed or not. The appellant's fly was down. He zipped it up. R said that he looked "weird ... he had watery eyes and a red…

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 M

Details

AGLC: R v M [1995] QCA 283
Case: [1995] QCA 283
Decision Date: 23/06/1995

CaseChat Overview and Summary

The matter under consideration was a criminal appeal by the defendant, referred to as M, against his conviction for incest. The appeal was heard in the High Court of Australia. The dispute revolved around whether the trial judge had misrepresented one of the defence's submissions to the jury and whether the trial judge was correct in instructing the jury that the complainant and her mother would be wicked if they were making and persisting with false allegations.

The legal issues that the court was required to decide included whether the trial judge's direction to the jury regarding the wickedness of the complainant and her mother making and persisting with false allegations was an improper comment on the evidence and whether the trial judge had misdescribed one of the defence's submissions to the jury. The court had to determine whether these actions by the trial judge amounted to a miscarriage of justice and whether they had deprived the defendant of a fair trial.

The court concluded that the trial judge's direction to the jury regarding the wickedness of the complainant and her mother making and persisting with false allegations was an improper comment on the evidence. The court also found that the trial judge had misdescribed one of the defence's submissions to the jury. The court held that these errors deprived the defendant of a fair trial, and as a result, the conviction was quashed and a new trial was ordered. The court did not find it necessary to consider other grounds of appeal that were advanced by the defendant.

Orders