R v MAL - [2005] QCA 238

SUPREME COURT OF QUEENSLAND

CITATION:

R v MAL [2005] QCA 238

PARTIES:

R
v
MAL
(appellant)

FILE NO/S:

CA No 36 of 2005
DC No 225 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court

DELIVERED ON:

28 June 2005

DELIVERED AT:

Brisbane

HEARING DATE:

22 June 2005

JUDGES:

Williams, Jerrard and Keane JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Allow the appeal against all convictions
2. Set aside those convictions
3. Enter verdicts of not guilty on those charges

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL ALLOWED – appellant convicted of rape and indecent treatment of his six year old daughter – complainant’s two police interviews admitted as evidence – complainant also gave evidence by video-recording at trial – complainant’s three accounts of abuse were all very different and bizarre – no evidence supporting the occurrence of the particular events alleged in the charges – medical evidence given that complainant had probably been sexually abused at some time – whether it was open to the jury to find that any of the offences charged had occurred

Criminal Code 1899 (Qld), s 668E(1)
Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A
Evidence Act 1977 (Qld), Div 4A, s 21AW

Jones v R (1997) 191 CLR 439, cited
MFA v R (2002) 213 CLR 606; (2002) 193 ALR 184, cited
R v M [2001] QCA 458; CA No 126 of 2001, 26 October 2001, cited
R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82, cited
R v S [2002] QCA 167; (2002) 129 A Crim R 339, cited

COUNSEL:

M C Chowdhury for the appellant
G P Long for the respondent

SOLICITORS:

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

WILLIAMS JA: All relevant background facts are set out in the reasons for judgment of Jerrard JA which I have had the advantage of reading. I agree with the reasoning stated therein for concluding that the appeal against convictions should be allowed and verdicts of acquittal entered, but I wish to add some observations by way of emphasis.

All the alleged offences were said to have occurred between 1 January and 15 November 2002. The first relevant interview with the complainant took place on 24 April 2003 when she was seven years of age. On that occasion she referred to events which arguably could be said to form the basis of counts 4, 5 and 6 on the indictment. She was next interviewed on 31 December 2003, by which time she was eight years of age, when arguably the events forming the basis of counts 1 and 2 were recounted; they had not been referred to in the earlier interview. But what is more significant is that…

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 MAL

Details

AGLC: R v MAL [2005] QCA 238
Case: [2005] QCA 238
Decision Date: 28 June 2005

CaseChat Overview and Summary

The appeal before the court involved the appellant, who had been convicted of the rape and indecent treatment of his six-year-old daughter. The case hinged on the testimonies of the complainant, who had been subjected to two police interviews, as well as her testimony given via video-recording during the trial. The complainant's accounts of the alleged abuse were notably inconsistent and unconventional, raising questions about the veracity and reliability of her statements. The prosecution's case was further weakened by the lack of any corroborating evidence supporting the specific events alleged in the charges. Although medical evidence suggested that the complainant had likely been sexually abused at some point, the court had to determine whether it was reasonable for the jury to conclude that any of the charged offences had indeed occurred.

The central legal issues revolved around whether the jury's verdict was unreasonable or unsustainable, particularly given the discrepancies in the complainant's accounts and the absence of corroborative evidence. The court had to consider whether the evidence was sufficient to support the jury's conclusion that the appellant was guilty of the charges. The appellant's counsel argued that the inconsistencies in the complainant's statements and the lack of independent evidence made the jury's verdict unreasonable. The court was required to assess the strength of the evidence and determine whether the jury's decision was beyond reasonable doubt.

The court, after careful consideration, found that the jury's verdict was indeed unreasonable and unsustainable. The discrepancies in the complainant's accounts, coupled with the lack of corroborative evidence, led the court to conclude that it was not open to the jury to find that any of the offences charged had occurred. The court emphasised the importance of consistent and reliable evidence in criminal cases, particularly those involving allegations of sexual abuse against a child. Consequently, the court allowed the appeal, set aside the convictions, and entered verdicts of not guilty on all charges against the appellant.

Orders

Orders of the court

1. Allow the appeal against all convictions

2. Set aside those convictions

3. Enter verdicts of not guilty on those charges

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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CITATION:	R v MAL [2005] QCA 238
PARTIES:	R v MAL (appellant)
FILE NO/S:	CA No 36 of 2005 DC No 225 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court
DELIVERED ON:	28 June 2005
DELIVERED AT:	Brisbane
HEARING DATE:	22 June 2005
JUDGES:	Williams, Jerrard and Keane JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Allow the appeal against all convictions 2. Set aside those convictions 3. Enter verdicts of not guilty on those charges
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL ALLOWED – appellant convicted of rape and indecent treatment of his six year old daughter – complainant’s two police interviews admitted as evidence – complainant also gave evidence by video-recording at trial – complainant’s three accounts of abuse were all very different and bizarre – no evidence supporting the occurrence of the particular events alleged in the charges – medical evidence given that complainant had probably been sexually abused at some time – whether it was open to the jury to find that any of the offences charged had occurred Criminal Code 1899 (Qld), s 668E(1) Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A Evidence Act 1977 (Qld), Div 4A, s 21AW Jones v R (1997) 191 CLR 439, cited MFA v R (2002) 213 CLR 606; (2002) 193 ALR 184, cited R v M [2001] QCA 458; CA No 126 of 2001, 26 October 2001, cited R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82, cited R v S [2002] QCA 167; (2002) 129 A Crim R 339, cited
COUNSEL:	M C Chowdhury for the appellant G P Long for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent