R v M'Bie

Case [2017] QCA 40

SUPREME COURT OF QUEENSLAND

CITATION:

R v M’Bie [2017] QCA 40

PARTIES:

R
v
M’BIE, Ardin Claudi
(appellant/applicant)

FILE NO/S:

CA No 105 of 2016
DC No 482 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Appeal Against Conviction & Sentence

ORIGINATING COURT:

District Court at Southport – Date of Conviction & Sentence: 7 April 2016

DELIVERED ON:

17 March 2017

DELIVERED AT:

Brisbane

HEARING DATE:

27 September 2016

JUDGES:

Gotterson and Philippides JJA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The appeal against conviction is dismissed.

2.   The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted by a jury of two counts of sexual assault – where the evidence of the complainant was uncorroborated – where the appellant sought to tender evidence on appeal that was not adduced at trial – whether trial judge should have directed the jury to consider a defence under s 23 of the Criminal Code (Qld)

MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited
R v Baden-Clay (2016) 90 ALJR 1013; [2016] HCA 35, cited
R v Lovet [1986] 1 Qd R 52, cited
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited

COUNSEL:

The appellant/applicant appeared on his own behalf
G J Cummings for the respondent

SOLICITORS:

The appellant/applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

  1. GOTTERSON JA:  I agree with the orders proposed by Douglas J and with the reasons given by his Honour.

  2. PHILIPPIDES JA:  I agree that the appeal against conviction should be dismissed and the application for leave to appeal against sentence should be refused for the reasons given by Douglas J.

  3. DOUGLAS J:  The appellant was charged with three counts of sexual assault on the one complainant and, on 7 April 2016, was found guilty of two counts relating to events that occurred on 26 January 2015 and not guilty of the third count alleged to have occurred on an unknown date between 1 March 2015 and 30 April 2015.

  4. He has appealed against the convictions on the grounds that the guilty verdicts were unsafe, unsatisfactory and inconsistent with the evidence. Those grounds are, no doubt, meant to be equivalent to the statutory language of s 688E of the Criminal Code that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence.

  5. He also argued that the jury should have been directed that the prosecution was required to establish beyond reasonable doubt that s 23 of the Criminal Code did not apply to excuse him from criminal responsibility at least in respect of count 1.  That was argued on the basis of evidence…

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AGLC
R v M'Bie [2017] QCA 40
Case
[2017] QCA 40
Decision Date

CaseChat Overview and Summary

In the case of R v M’Bie, the appellant contested his conviction by a jury of two counts of sexual assault against a 15-year-old complainant. The appellant, a university student and former scout master of the complainant, argued that the jury's verdict was unreasonable given the uncorroborated evidence of the complainant. The central dispute was the credibility of the complainant's testimony, which detailed two incidents of alleged sexual assault occurring during the night of 26 January 2015. The complainant described waking up to find the appellant's penis on his bottom and later feeling the appellant's erect penis on his bottom with the appellant attempting to penetrate him. The appellant's defence included arguments that the trial judge should have directed the jury to consider a defence under section 23 of the Criminal Code (Qld) and that the jury's verdict was unreasonable or insupportable having regard to the evidence.

The court was required to determine whether the trial judge should have directed the jury to consider the defence under section 23 of the Criminal Code (Qld) and whether the verdict was unreasonable or insupportable. The court examined the credibility of the complainant's evidence, noting that despite the lack of corroboration, the jury was entitled to accept the complainant's account of the events. The court highlighted that the inconsistencies and observations about the complainant’s behaviour did not undermine the overall effect of the evidence. The court concluded that the jury's verdicts were open to them on the evidence and that it was not unreasonable to sustain them, given the advantages the jury had in assessing the witnesses' credibility.

The court dismissed the appeal against conviction, finding no basis to set aside the jury's verdicts as unreasonable. The court also refused the application for leave to appeal against sentence, finding that the sentence was not manifestly excessive. The final orders of the court were to dismiss the appeal against conviction and to refuse the application for leave to appeal against sentence.

Orders

Orders of the court

1. The appeal against conviction is dismissed.

2. The application for leave to appeal against sentence is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

I have mentioned these events because the appellant regarded the change in the charge as a reason why the complainant’s evidence should be disbelieved. In truth, as I shall explain later, the complainant said it was a misunderstanding by police of what had been said to them by the complainant - something lost in translation.The evidence The complainant was a 16 year old French youth by the time of the trial and 15 when the relevant offences occurred. He arrived in Australia in January 2015 to attend a school at the Gold Coast while living in a unit with the appellant, who was a university student there, and had been his scout master in France. In France the complainant had stayed at the appellant’s apartment on weekends with his mother’s approval and the appellant had tried to help him with his behaviour. He had not been happy at his school in France. He had visited the Gold Coast in 2014, staying with another family, but had been on a road trip with the appellant for several days on that occasion. He was to have his own bedroom in the unit at the Gold Coast in 2015 and slept there on the night of his arrival. On the second night, 26 January 2015, the appellant asked him to sleep in the appellant’s bedroom to be sure that he would wake up at the right time to be ready to go to school the next day. The complainant slept in the same bed as the appellant dressed in boxer shorts, a t-shirt and the bottom of a pair of long-legged pyjamas. The appellant was wearing only boxer shorts. After going to sleep the complainant woke in the middle of the night with his pyjama pants and boxer shorts down near his knees. They had been up when he went to sleep. He could feel the appellant’s body on him with his penis on the complainant’s bottom. He did not know whether it felt as if it was erect and said it was at the same level as his coccyx or tail bone. It was there for two or three seconds. The complainant moved and said the appellant went back to a position on his back and feigned sleep, including pretending to snore. The complainant had been sleeping on his front and believed the appellant had been on top of him. He tried to go back to sleep “and to think what was going on, because I was not really sure of what happened”.[2] He had, by then, pulled up his boxers and pyjama bottoms.[2]R 36/7-8. About 30 minutes later he said the appellant pulled down his boxer shorts and pyjamas. He then felt the appellant’s erect penis on his bottom and said the appellant’s left arm or hand could not stop shaking. He believed the appellant’s weight was on his left hand and his right hand was on his, the appellant’s, penis in an attempt to penetrate him “between his bottom” but he could not see that.[3] He felt contact with the appellant’s penis for about five seconds. After that the complainant left the room.[3]R 38/5-30. Those two episodes constituted the first and second counts on the indictment where guilty verdicts were entered by the jury. Fifteen minutes later the appellant came to see the complainant in his bedroom and asked why he was not in the appellant’s bedroom. The complainant’s evidence was:[4]“WITNESS: So 15 minutes later he came to see me in my bedroom and he asked me why I was not in his bedroom. So I told him – I responded that you know perfectly why, so don’t ask. So he pretended – so he acted like he didn’t knew (sic). So he asked me to explain. So I told him – I explained to him what just happened. So he told me not to worry about that, that he – very often he was sleepwalking.”[4]R 40/15-20.

Decision

Reasons for decision

The result in this case is consistent with those decisions and cannot be said to be manifestly excessive when compared with them and the other decisions referred to particularly in Bradford.Conclusions When one analyses the evidence as I have set it out earlier, it is clear that the jury were entitled to accept the complainant’s evidence as establishing the unlawful and indecent assaults charged in counts 1 and 2. The inconsistencies relied upon by the appellant and the other observations about the complainant’s behaviour were not such as to gainsay the overall effect of the evidence. Accordingly, no reason has been shown in this case to set aside the jury’s verdicts as unreasonable. They were open to them on the evidence and it has not been shown that it is unreasonable to sustain them, having regard to the advantages enjoyed by the jury over this court in seeing and hearing the witnesses called at trial. The other grounds argued are also without merit for the reasons expressed earlier.Order1.Accordingly, I would order that the appeal against conviction should be dismissed and the application for leave to appeal against sentence should be refused.

Ratio Decidendi

Legal Principle Established

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