R v MBO

[2011] QCA 280

SUPREME COURT OF QUEENSLAND

CITATION:

R v MBO [2011] QCA 280

PARTIES:

R
v
MBO
(appellant)

FILE NO/S:

CA No 217 of 2010
DC No 6 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Bundaberg

DELIVERED ON:

11 October 2011

DELIVERED AT:

Brisbane

HEARING DATE:

15 April 2011

JUDGES:

Fraser and White JJA and Atkinson J
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 – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – OTHER OFFENCES – where the appellant was convicted after a trial of five counts of indecent dealing with his daughter and one count of common assault against his son – where the appellant challenges the conviction on count 1 on the basis of lack of adequate particularity – whether the charges on count 1 were sufficiently particularised

CRIMINAL LAW – EVIDENCE – PROPENSITY, TENDENCY AND CO-INCIDENCE – ADMISSIBILITY AND RELEVANCY – PROPENSITY EVIDENCE – EVIDENCE OF UNCHARGED ACTS – where the appellant contends that evidence of harshness and physical violence against the complainants and the complainants’ mother ought not to have been admitted – whether the primary judge erred in not discharging the jury following this evidence – whether this resulted in an unfair trial

Criminal Code 1899 (Qld), Ch 28 - 30
Evidence Act 1977 (Qld), s 130, s 132B

BRS v The Queen (1997) 191 CLR 275; [1997] HCA 47, cited
Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22, cited
Gipp v The Queen (1998) 194 CLR 106; [1998] HCA 21, considered
HML v The Queen (2008) 235 CLR 334; [2008] HCA 16, considered
KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11, cited
Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7, considered
R v CAH (2008) 186 A Crim R 288; [2008] QCA 333, cited
R v KS (2007) 176 A Crim R 419; [2007] QCA 335, cited
R v Nugent[2011] QCA 127, cited
R v PAB [2008] 1 Qd R 184; [2006] QCA 212, cited
R v UC[2008] QCA 194, cited
Roach v The Queen (2011) 85 ALJR 558; [2011] HCA 12, considered
S v The Queen (1989) 168 CLR 266; [1989] HCA 66, cited

COUNSEL:

S J Hamlyn-Harris for the appellant
M J Copley SC for the respondent

SOLICITORS:

Robertson O’Gorman for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. FRASER JA:  I have had the advantage of reading the reasons for judgment of White JA.

1. As White JA has noted in [63] of her Honour’s reasons, the evidence of the appellant’s harsh and violent conduct against his children was admitted on the basis that, if accepted, it tended to demonstrate how the appellant treated his children in front of other…