R v MAG

Case [2004] QCA 397

SUPREME COURT OF QUEENSLAND

CITATION:

R v MAG [2004] QCA 397

PARTIES:

R
v
MAG
(appellant/applicant)

FILE NO/S:

CA No 170 of 2004
DC No 179 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

29 October 2004

DELIVERED AT:

Brisbane

HEARING DATE:

24 September 2004

JUDGES:

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

ORDERS:

1.   Appeal against conviction dismissed

2.   Application for leave to appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS – EVIDENCE OF SEXUAL EXPERIENCE, REPUTATION AND MORALITY – where appellant convicted of sexual offences against foster daughter – where learned trial judge refused to allow defence to cross-examine complainant about previous allegations of sexual abuse that she had made against other people – whether cross-examination on these matters would have a clear tendency to impact upon complainant’s credibility

CRIMINAL LAW – EVIDENCE – COMPLAINTS – GENERALLY – where complainant made preliminary complaint to subsequent foster carer before complaining to police – where preliminary complaint made some months after the last uncharged act of appellant – where learned trial judge directed jury that they could regard the complaint as establishing consistency in complainant’s behaviour – whether learned trial judge properly directed jury as to use they could make of preliminary complaint

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – EXPRESSION OF JUDGE’S OWN OPINION – GENERALLY – where learned trial judge made comments during course of evidence – whether comments were prejudicial to appellant – whether learned trial judge’s comments on facts rendered trial unfair to appellant

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL – OTHER IRREGULARITIES – where jury unable to agree on four counts and convicted on other counts – whether this outcome was suggestive of compromise on the part of the jury – whether clear inconsistency among verdicts – whether jury could be satisfied beyond reasonable doubt that complainant’s evidence was correct – whether convictions unsafe and unsatisfactory

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENCE – where applicant sentenced to seven years imprisonment – where no prior criminal history – where complainant was applicant’s foster child and offences commenced when she was 13 years old – where applicant gave her money in return for sexual acts – where no remorse shown – where no violence or threats used – whether sentence imposed manifestly excessive

Criminal Law (Sexual Offences) Act 1978 (Qld), s 4, s 4A

Black v The Queen (1993) 179 CLR 44, considered
Bull…

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Details
AGLC
R v MAG [2004] QCA 397
Case
[2004] QCA 397
Decision Date

CaseChat Overview and Summary

The appellant was convicted of sexual offences against his foster daughter. The High Court was called upon to consider the admissibility of certain evidence, the trial judge's directions to the jury, and the fairness of the trial. Additionally, the court reviewed the sentence imposed on the appellant. The central legal issues revolved around whether the trial judge erred in excluding evidence about the complainant's previous allegations of sexual abuse, the appropriate use of a preliminary complaint made by the complainant, potential prejudicial comments made by the trial judge, and whether the jury's verdicts indicated a compromise or inconsistency. Furthermore, the court examined whether the sentence was manifestly excessive.

The court determined that the exclusion of evidence regarding the complainant's previous allegations did not impact her credibility to a clear degree, hence the trial judge's ruling was upheld. The court found no error in the trial judge's direction to the jury regarding the preliminary complaint, as it was deemed consistent with the complainant's behaviour. The trial judge's comments during the trial were considered non-prejudicial and did not render the trial unfair. The court found no miscarriage of justice, as the jury's partial inability to reach a unanimous verdict did not indicate compromise or inconsistency in their convictions. Lastly, the court found that the sentence, considering the nature of the offences and the absence of remorse, was not manifestly excessive.

The appeal against the conviction was dismissed, and the application for leave to appeal against the sentence was also dismissed. The trial judge's decisions and the sentence imposed were affirmed, concluding that no substantial errors or miscarriages of justice occurred during the trial.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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