R v MBP - [2012] QCA 90

SUPREME COURT OF QUEENSLAND

CITATION:

R v MBP [2012] QCA 90

PARTIES:

R
v
MBP
(appellant)

FILE NO/S:

CA No 131 of 2011
DC No 205 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

13 April 2012

DELIVERED AT:

Brisbane

HEARING DATE:

9 March 2012

JUDGES:

Fraser JA and Margaret Wilson AJA and Applegarth J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where appellant was convicted of maintaining a sexual relationship with a child (count 1), indecent treatment of a child (count 2) and one count of rape (count 3) – where appellant was found not guilty of one additional count of rape (count 4) – where counts 3 and 4 were alleged to have occurred on the same date – whether guilty verdicts on counts 1, 2 and 3 were inconsistent with the not guilty verdict on count 4

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – UNREASONABLE OR INSUPPORTABLE VERDICT – where appellant argued that the jury did not give due consideration to the evidence and its verdicts were not consistent with the evidence – where appellant contended that the jury’s verdicts were an emotional reaction to the allegations – whether the jury’s verdicts on counts 1, 2 and 3 were unreasonable

Criminal Code 1899 (Qld), s 668E
Evidence Act 1977 (Qld), s 21AK

MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited
R v BCE [2012] QCA 58, cited
R v CX [2006] QCA 409, cited
R v SBL[2009] QCA 130, cited
R v Smillie (2002) 134 A Crim R 100; [2002] QCA 341, cited

COUNSEL:

The appellant appeared on his own behalf
S P Vasta for the respondent

SOLICITORS:

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

FRASER JA: I agree with the reasons for judgment of Applegarth J and the order proposed by his Honour.

MARGARET WILSON AJA: The appeal should be dismissed. I agree with the reasons of Applegarth J, which I have had the advantage of reading.

APPLEGARTH J: The appellant was tried on four counts of sexual offences:

·
maintaining a sexual relationship with a child between 1 May 2008 and

13 September 2009 (count 1);
·indecent treatment of the same child by unlawfully procuring her to commit an indecent act on a date unknown between 1 May 2008 and 13 September 2009 (count 2);
·rape of the child on 12 September 2009 (count 3);
·rape of the child on 12 September 2009 (count 4).

On 5 May 2011 the appellant was found guilty on the first three counts and found not guilty on the…

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 MBP

Details

AGLC: R v MBP [2012] QCA 90
Case: [2012] QCA 90
Decision Date: 13 April 2012

CaseChat Overview and Summary

The appellant in this matter, identified as MBP, was convicted of maintaining a sexual relationship with a child (count 1), indecent treatment of a child (count 2) and one count of rape (count 3). However, the appellant was found not guilty of another count of rape (count 4) which was alleged to have occurred on the same date as count 3. MBP appealed against his convictions, arguing that the verdicts were inconsistent and unreasonable, and that the jury did not give due consideration to the evidence.

The legal issues before the court were whether the guilty verdicts on counts 1, 2 and 3 were inconsistent with the not guilty verdict on count 4, and whether the verdicts on counts 1, 2 and 3 were unreasonable. The court considered the evidence presented at trial and the arguments of the parties. The court found that the evidence was sufficient to support the guilty verdicts on counts 1, 2 and 3, and that there was no inconsistency between those verdicts and the not guilty verdict on count 4. The court also found that the jury’s verdicts were not unreasonable.

The court held that the jury’s verdicts on counts 1, 2 and 3 were not inconsistent with the not guilty verdict on count 4. The court noted that the jury was entitled to believe some of the evidence and disbelieve other parts of it, and that the jury’s verdicts were open to them on the evidence. The court also found that the jury’s verdicts were not unreasonable, as the evidence was sufficient to support the verdicts and the jury had given due consideration to the evidence. The court held that the appeal was without merit and dismissed it.

No further orders were made by the court. The convictions of the appellant on counts 1, 2 and 3 stand.

Orders

Orders of the court

Appeal 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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CITATION:	R v MBP [2012] QCA 90
PARTIES:	R v MBP (appellant)
FILE NO/S:	CA No 131 of 2011 DC No 205 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	13 April 2012
DELIVERED AT:	Brisbane
HEARING DATE:	9 March 2012
JUDGES:	Fraser JA and Margaret Wilson AJA and Applegarth J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where appellant was convicted of maintaining a sexual relationship with a child (count 1), indecent treatment of a child (count 2) and one count of rape (count 3) – where appellant was found not guilty of one additional count of rape (count 4) – where counts 3 and 4 were alleged to have occurred on the same date – whether guilty verdicts on counts 1, 2 and 3 were inconsistent with the not guilty verdict on count 4 CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – UNREASONABLE OR INSUPPORTABLE VERDICT – where appellant argued that the jury did not give due consideration to the evidence and its verdicts were not consistent with the evidence – where appellant contended that the jury’s verdicts were an emotional reaction to the allegations – whether the jury’s verdicts on counts 1, 2 and 3 were unreasonable Criminal Code 1899 (Qld), s 668E Evidence Act 1977 (Qld), s 21AK MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited R v BCE [2012] QCA 58, cited R v CX [2006] QCA 409, cited R v SBL[2009] QCA 130, cited R v Smillie (2002) 134 A Crim R 100; [2002] QCA 341, cited
COUNSEL:	The appellant appeared on his own behalf S P Vasta for the respondent
SOLICITORS:	The appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent