R v MBV - [2013] QCA 17

SUPREME COURT OF QUEENSLAND

CITATION:

R v MBV [2013] QCA 17

PARTIES:

R
v
MBV
(appellant)

FILE NO/S:

CA No 253 of 2012
DC No 5614 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Dalby

DELIVERED ON:

15 February 2013

DELIVERED AT:

Brisbane

HEARING DATE:

30 January 2013

JUDGES:

Margaret McMurdo P, Muir and Gotterson JJA
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 – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant was convicted after trial of one count of indecent treatment of a child under 16 and one count of attempted indecent treatment of a child under 16 – where the complainant was the appellant's step-granddaughter – where the complainant made a telephone call to the appellant which was recorded by police – where the pretext telephone call was found to be admissible at trial as demonstrating consciousness of guilt – where appellant contends that his responses do not amount to admissions – where the appellant contends that, alternatively, if the pretext telephone call was admissible as a matter of law, it should have been excluded in the exercise of the trial judge's discretion, either at common law or under s 130 Evidence Act 1977 (Qld) – where the trial judge was not asked to exclude the pretext telephone call on discretionary grounds – whether evidence admissible – whether miscarriage of justice occurred

Evidence Act 1977 (Qld), s 93A, s 130

Black v The Queen (1993) 179 CLR 44; [1993] HCA 71, noted
R v Christie [1914] AC 545, considered
R v Ciantar (2006) 16 VR 26; [2006] VSCA 263, considered
R v Doolan [1962] Qd R 449, distinguished
R v Ortega-Farfan (2011) 215 A Crim R 251; [2011] QCA 364, considered

COUNSEL:

D R Kent for the appellant
B J Merrin for the respondent

SOLICITORS:

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

MARGARET McMURDO P: The appellant was convicted in the Dalby District Court on 30 August 2012 of indecent treatment of a child under 16 (count 1) and attempted indecent treatment of a child under 16 (count 2). The complainant in each count was the appellant's step-granddaughter. He has appealed against his conviction on the ground that the trial judge erred in admitting evidence of a pretext telephone call between the complainant and the appellant. He contends that the only passage upon which the prosecution relied was equivocal and did not amount to a statement against interest. If the evidence was admissible, he submits that the judge should have excluded it in the exercise of his discretion, either at common law or under s 130 Evidence Act 1977 (Qld).

The evidence at trial

It is necessary to refer to the evidence at…

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 MBV

Details

AGLC: R v MBV [2013] QCA 17
Case: [2013] QCA 17
Decision Date: 15 February 2013

CaseChat Overview and Summary

The case of R v MBV involves an appeal against a conviction for one count of indecent treatment of a child under 16 and one count of attempted indecent treatment of a child under 16. The appellant was convicted after a trial where the complainant, his step-granddaughter, testified against him. The crux of the appeal is the admissibility and subsequent impact of a telephone call made by the complainant to the appellant, which was recorded by the police. The appellant argues that his responses during this call do not constitute admissions and that, if the call was admissible, it should have been excluded by the trial judge under the common law or section 130 of the Evidence Act 1977 (Qld).

The court was required to determine whether the telephone call was admissible under the law and, if so, whether its admission constituted a miscarriage of justice. The appeal hinged on whether the call contained admissions and if the trial judge should have exercised a discretion to exclude the evidence despite its admissibility. The court considered the nature of the evidence, the context in which it was obtained, and the principles guiding the admission of such evidence in criminal trials.

In dismissing the appeal, the court found that the telephone call was properly admitted as it demonstrated consciousness of guilt, which is a recognised exception to the hearsay rule. The court further held that the trial judge was not required to exclude the evidence under discretionary provisions, as there were no compelling reasons to do so. The court concluded that the admission of the evidence did not result in a miscarriage of justice, affirming the conviction.

No further orders were made by the court.

Orders

Orders of the court

Appeal against conviction dismissed.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v MBV [2013] QCA 17
PARTIES:	R v MBV (appellant)
FILE NO/S:	CA No 253 of 2012 DC No 5614 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Dalby
DELIVERED ON:	15 February 2013
DELIVERED AT:	Brisbane
HEARING DATE:	30 January 2013
JUDGES:	Margaret McMurdo P, Muir and Gotterson JJA 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 – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant was convicted after trial of one count of indecent treatment of a child under 16 and one count of attempted indecent treatment of a child under 16 – where the complainant was the appellant's step-granddaughter – where the complainant made a telephone call to the appellant which was recorded by police – where the pretext telephone call was found to be admissible at trial as demonstrating consciousness of guilt – where appellant contends that his responses do not amount to admissions – where the appellant contends that, alternatively, if the pretext telephone call was admissible as a matter of law, it should have been excluded in the exercise of the trial judge's discretion, either at common law or under s 130 Evidence Act 1977 (Qld) – where the trial judge was not asked to exclude the pretext telephone call on discretionary grounds – whether evidence admissible – whether miscarriage of justice occurred Evidence Act 1977 (Qld), s 93A, s 130 Black v The Queen (1993) 179 CLR 44; [1993] HCA 71, noted R v Christie [1914] AC 545, considered R v Ciantar (2006) 16 VR 26; [2006] VSCA 263, considered R v Doolan [1962] Qd R 449, distinguished R v Ortega-Farfan (2011) 215 A Crim R 251; [2011] QCA 364, considered
COUNSEL:	D R Kent for the appellant B J Merrin for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent