R v MBI - [2009] QCA 374

SUPREME COURT OF QUEENSLAND

CITATION:

R v MBI [2009] QCA 374

PARTIES:

R
v
MBI
(appellant)

FILE NO/S:

CA No 273 of 2008
DC No 2820 of 2008
DC No 2614 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction and Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

8 December 2009

DELIVERED AT:

Brisbane

HEARING DATE:

15 September 2009

JUDGES:

McMurdo P, Fraser JA and Cullinane J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Appeal against conviction dismissed. 1.

Application for leave to appeal against sentence refused.2.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – OTHER MATTERS – the appellant was convicted after a trial of one count of indecent treatment of a child under 12 and two counts of rape – the complainant's evidence was contained in four police interviews and two sessions of pre-recorded evidence – the complainant's evidence was not articulate or clear – the dates charged in the rape counts were amended twice – whether the guilty verdicts were unreasonable and cannot be supported having regard to the evidence

APPEAL AND NEW TRIAL – NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MISCONDUCT OF COUNSEL – GENERALLY – the defence counsel applied for a stay of proceedings at the conclusion of the appellant's trial – the learned trial judge refused the application for a stay – whether the circumstances were exceptional enough to warrant a granting of a stay in this case – whether the conduct of the prosecution of the appellant on this indictment amounted to an abuse of process

Criminal Code 1899 (Qld), s 668E

Jago v District Court (NSW) (1989) 168 CLR 23; [1989] HCA 46, cited
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited
R v Ferguson; ex parte A-G (Qld) (2008) 186 A Crim R 483; [2008] QCA 227, cited
R v S [2000] 1 Qd R 445; [1998] QCA 271, considered
The Queen v Glennon (1992) 173 CLR 592; [1992] HCA 16, cited

COUNSEL:

C Morgan and K Hillard for the appellant
M R Byrne for the respondent

SOLICITORS:

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

McMURDO P: The appellant pleaded not guilty, initially on 8 May 2007, in the Brisbane District Court to one count of indecent treatment of a child under 12 (count 1); one count of vaginal rape (count 2); and one count of anal rape (count 3). The three counts all concerned his de facto step-sister, T. They were each originally charged as occurring between 30 June and 1 August 2005. The appellant's first trial commenced on 31 March 2008 but ended in a mistrial after three days when, at the close of the evidence, the judge allowed the prosecutor to amend the dates when counts 2…

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 MBI

Details

AGLC: R v MBI [2009] QCA 374
Case: [2009] QCA 374
Decision Date: 8 December 2009

CaseChat Overview and Summary

The appellant, referred to as MBI, was convicted in a trial of one count of indecent treatment of a child under 12 years of age and two counts of rape. The complainant's evidence was presented through four police interviews and two sessions of pre-recorded evidence. The evidence provided by the complainant was not particularly articulate or clear. The dates charged in the two rape counts were amended twice during the proceedings. The primary issue before the court was whether the verdicts of guilt were unreasonable and unsustainable when considering the evidence presented.

The court was required to determine if the guilty verdicts were unreasonable and could not be supported based on the evidence. The complainant's evidence was noted to be unclear and not entirely articulate, which raised questions about the reliability of the testimony. Additionally, the amendments to the dates charged in the rape counts were examined to assess their impact on the verdicts. The court also considered whether the circumstances warranted a stay of proceedings, particularly given the conduct of the defence counsel and the prosecution's handling of the case.

The court found that the guilty verdicts were not unreasonable or unsustainable considering the evidence provided. The amendments to the dates charged in the rape counts were deemed to not significantly impact the outcome. The court also determined that the circumstances did not warrant a stay of proceedings, and there was no abuse of process by the prosecution. Consequently, the appeal against the conviction was dismissed, and the application for leave to appeal against the sentence was refused.

Orders

Orders of the court

Appeal against conviction dismissed. 1.

Application for leave to appeal against sentence refused.2.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v MBI [2009] QCA 374
PARTIES:	R v MBI (appellant)
FILE NO/S:	CA No 273 of 2008 DC No 2820 of 2008 DC No 2614 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction and Sentence
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	8 December 2009
DELIVERED AT:	Brisbane
HEARING DATE:	15 September 2009
JUDGES:	McMurdo P, Fraser JA and Cullinane J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Appeal against conviction dismissed. 1. Application for leave to appeal against sentence refused.2.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – OTHER MATTERS – the appellant was convicted after a trial of one count of indecent treatment of a child under 12 and two counts of rape – the complainant's evidence was contained in four police interviews and two sessions of pre-recorded evidence – the complainant's evidence was not articulate or clear – the dates charged in the rape counts were amended twice – whether the guilty verdicts were unreasonable and cannot be supported having regard to the evidence APPEAL AND NEW TRIAL – NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MISCONDUCT OF COUNSEL – GENERALLY – the defence counsel applied for a stay of proceedings at the conclusion of the appellant's trial – the learned trial judge refused the application for a stay – whether the circumstances were exceptional enough to warrant a granting of a stay in this case – whether the conduct of the prosecution of the appellant on this indictment amounted to an abuse of process Criminal Code 1899 (Qld), s 668E Jago v District Court (NSW) (1989) 168 CLR 23; [1989] HCA 46, cited MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited R v Ferguson; ex parte A-G (Qld) (2008) 186 A Crim R 483; [2008] QCA 227, cited R v S [2000] 1 Qd R 445; [1998] QCA 271, considered The Queen v Glennon (1992) 173 CLR 592; [1992] HCA 16, cited
COUNSEL:	C Morgan and K Hillard for the appellant M R Byrne for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent