R v MBD

[2008] QCA 343

SUPREME COURT OF QUEENSLAND

CITATION:

R v MBD [2008] QCA 343

PARTIES:

R
v
MBD
(appellant)

FILE NO/S:

CA No 114 of 2008
DC No 927 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

31 October 2008

DELIVERED AT:

Brisbane

HEARING DATE:

24 September 2008

JUDGES:

Keane JA, Jones and Atkinson JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal against conviction dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISCARRIAGE OF JUSTICE – unreasonable or unsupportable verdict – where evidence  circumstantial – where the appellant was convicted of five counts of indecent treatment of a child under 16 years of age with the aggravating circumstances that the child was under 12 years and of lineal descent

Criminal Code 1899 (Qld), s 7

MFA v The Queen (2002) 213 CLR 606; [2002] HCA 52, applied

COUNSEL:

Appellant appeared on his own behalf
A J Edwards for the respondent

SOLICITORS:

Appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

1. KEANE JA:  I have had the advantage of reading a draft of the reasons for judgment prepared by Jones J.  I agree with his Honour's reasons and with the order proposed by his Honour.

1. JONES J: The appellant was convicted by a jury of five counts of indecent treatment of a child under 16 years of age with the aggravating circumstances that the child was under 12 years and of lineal descent.  The prosecution case in respect of the first four counts was that the appellant aided one Shaw to be photographed in sexually explicit positions with a child known as, A.  The child, then five years old, was the appellant’s daughter.  The aiding alleged was that the appellant made the child available by taking her to Shaw’s house specifically for that purpose.  The offending occurred on a date unknown between 1 October 1999 and 1 March 2001.  In respect of the fifth count, the prosecution case was that the appellant himself indecently dealt with A by licking her vagina on a date unknown between 1 August – 18 November 2000.  To prove this offence the prosecution relied upon the appellant’s alleged admission of this conduct during an internet chat room conversation with Shaw undertaken on 18 November 2000. 

1. The appellant was sentenced to six years imprisonment in respect of the first four counts and a further one year imprisonment cumulative in respect of the fifth count.

1. The appellant appeals against his conviction on the grounds –

1.          Verdict unreasonable; cannot be supported having regard to the evidence.

2.          Miscarriage of justice –

(a)        where prosecution seeks to prove accused guilty of another offence of which the accused had been acquitted;

(b)        Misstatement of evidence;

(c)        Misdirection;

(d)        Wrongful admission of evidence.

3.          Where risk of fabrication of evidence.