R v MBT - [2012] QCA 343

SUPREME COURT OF QUEENSLAND

CITATION:

R v MBT [2012] QCA 343

PARTIES:

R
v
MBT
(appellant)

FILE NO/S:

CA No 144 of 2012
DC No 5 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Rockhampton

DELIVERED ON:

7 December 2012

DELIVERED AT:

Brisbane

HEARING DATE:

23 November 2012

JUDGES:

Holmes, White and Gotterson JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Appeal against conviction allowed.

2.   Conviction and verdict set aside.

3.   A re-trial is ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – OTHER MATTERS – where the appellant was convicted of rape – where the complainant was the four year old granddaughter of the appellant’s de facto partner – where the appellant argued the verdict was unreasonable – where the appellant pointed to the complainant's invention of details during her interview with police as showing that she was an unreliable witness – where the appellant contended that other matters such as the limited opportunity for the incident and the complainant’s cheerful demeanour immediately after it militated against its having occurred – whether the jury could have been satisfied beyond reasonable doubt of the appellant’s guilt

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where the appellant was convicted of one count of rape – where the complainant gave unsworn evidence - where the appellant argued the trial judge failed to comply with the requirements of ss 9A and 9B of the Evidence Act 1977 – where the appellant argued that the trial judge failed to properly assess the complainant’s competence to give evidence and to explain the duty of speaking the truth – whether the trial judge should have made inquiry as to the complainant's competence to give evidence – whether the trial judge should have made inquiry as to the complainant’s competence to give sworn evidence – whether a miscarriage of justice resulted from the failure to ascertain whether the complainant was competent to give sworn evidence – whether the proviso could be applied

Evidence Act 1977 (Qld), s 9, s 9A, s 9B

Lau v The Queen (1991) 6 WAR 30, considered
M v The Queen (1994) 181 CLR 487, [1994] HCA 63, considered
R v BBR [2010] 1 Qd R 546; [2009] QCA 178, considered
R v Brooks (1998) 44 NSWLR 121, considered
R v Chalmers [2011] QCA 134, considered
R v Starrett (2002) 82 SASR 115; [2002] SASC 175, considered

COUNSEL:

P E Smith with K M Hillard for the appellant
S P Vasta for the respondent

SOLICITORS:

Fisher Dore Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

HOLMES JA: The appellant appeals against his conviction of rape on the grounds that the verdict was unreasonable; that the trial judge erred…

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 MBT

Details

AGLC: R v MBT [2012] QCA 343
Case: [2012] QCA 343
Decision Date: 7 December 2012

CaseChat Overview and Summary

The case of R v MBT involved the appellant who was convicted of raping his four-year-old granddaughter, the daughter of his de facto partner. The appellant contested the conviction, arguing that the verdict was unreasonable in light of the evidence presented, particularly pointing to the child's inconsistency during her police interview and other circumstantial evidence that suggested the incident might not have occurred. The appellant also contested the trial judge's handling of the child's unsworn evidence, claiming that the judge failed to properly assess her competency and understanding of the duty to speak the truth as required by sections 9A and 9B of the Evidence Act 1977.

The court was tasked with determining whether the jury could have reasonably concluded beyond reasonable doubt that the appellant was guilty, and whether the trial judge's failure to properly assess the child's competency and understanding of the duty to speak the truth constituted a miscarriage of justice. The court examined the evidence presented, the child's credibility, and the trial judge's adherence to the statutory requirements concerning the competency of child witnesses giving unsworn evidence.

The court found that the jury could not have been satisfied beyond reasonable doubt of the appellant's guilt, given the inconsistencies in the child's account and other factors. Furthermore, the court determined that the trial judge failed to properly assess the child's competency to give evidence and understand the duty of speaking the truth, which constituted a miscarriage of justice. The court concluded that the trial judge should have made inquiries into the child's competence to give evidence, and particularly to give sworn evidence. The appeal was allowed, the conviction and verdict set aside, and a re-trial ordered.

Orders

Orders of the court

1. Appeal against conviction allowed.

2. Conviction and verdict set aside.

3. A re-trial is ordered.

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 MBT [2012] QCA 343
PARTIES:	R v MBT (appellant)
FILE NO/S:	CA No 144 of 2012 DC No 5 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Rockhampton
DELIVERED ON:	7 December 2012
DELIVERED AT:	Brisbane
HEARING DATE:	23 November 2012
JUDGES:	Holmes, White and Gotterson JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal against conviction allowed. 2. Conviction and verdict set aside. 3. A re-trial is ordered.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – OTHER MATTERS – where the appellant was convicted of rape – where the complainant was the four year old granddaughter of the appellant’s de facto partner – where the appellant argued the verdict was unreasonable – where the appellant pointed to the complainant's invention of details during her interview with police as showing that she was an unreliable witness – where the appellant contended that other matters such as the limited opportunity for the incident and the complainant’s cheerful demeanour immediately after it militated against its having occurred – whether the jury could have been satisfied beyond reasonable doubt of the appellant’s guilt CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where the appellant was convicted of one count of rape – where the complainant gave unsworn evidence - where the appellant argued the trial judge failed to comply with the requirements of ss 9A and 9B of the Evidence Act 1977 – where the appellant argued that the trial judge failed to properly assess the complainant’s competence to give evidence and to explain the duty of speaking the truth – whether the trial judge should have made inquiry as to the complainant's competence to give evidence – whether the trial judge should have made inquiry as to the complainant’s competence to give sworn evidence – whether a miscarriage of justice resulted from the failure to ascertain whether the complainant was competent to give sworn evidence – whether the proviso could be applied Evidence Act 1977 (Qld), s 9, s 9A, s 9B Lau v The Queen (1991) 6 WAR 30, considered M v The Queen (1994) 181 CLR 487, [1994] HCA 63, considered R v BBR [2010] 1 Qd R 546; [2009] QCA 178, considered R v Brooks (1998) 44 NSWLR 121, considered R v Chalmers [2011] QCA 134, considered R v Starrett (2002) 82 SASR 115; [2002] SASC 175, considered
COUNSEL:	P E Smith with K M Hillard for the appellant S P Vasta for the respondent
SOLICITORS:	Fisher Dore Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent