Fraser JA and Applegarth and Jackson JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:
Appeal dismissed.
CATCHWORDS:
CRIMINAL LAW – PROCEDURE – VERDICT – ALTERNATIVE VERDICTS – DIRECTIONS TO THE JURY – where appellant charged with three counts of anal rape – where appellant’s trial counsel requested alternative verdict of attempted rape not be left to the jury – whether alternative verdict of attempted rape fairly arose for consideration on the whole of the evidence – where appellant convicted on rape charges – whether trial judge erred in failing to leave alternative verdicts of rape or indecent treatment to the jury
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – PARTICULAR CASES – where offences allegedly occurred before complainant turned six – where delay of about ten years between alleged offence and complaint – where evidence of child complainant uncorroborated – whether trial judge needed to refer jury in the circumstances to the possibility of childhood fantasy – whether trial judge failed to give adequate Longman direction
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – PARTICULAR CASES – where evidence of child complainant uncorroborated – whether circumstances created a perceptible risk of miscarriage of justice necessitating a Longman/Robinson direction – whether trial judge erred in failing to give adequate direction
Criminal Code 1889 (Qld), s 210, s 350, s 578(1), s 583(1), s 632
[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.
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AGLC
R v MBX [2013] QCA 214
Case
[2013] QCA 214
Decision Date
CaseChat Overview and Summary
In the case of R v MBX, the appellant was charged with three counts of anal rape. The case was heard in the court of appeal, where the appellant contested the conviction and sought to appeal on various grounds, including the trial judge's handling of alternative verdicts and the adequacy of jury directions. The central issue was whether the trial judge correctly decided which verdicts to present to the jury and if the trial judge's directions to the jury were sufficient in light of the evidence presented.
The court examined whether the alternative verdict of attempted rape was appropriate given the evidence, and whether the trial judge should have left this to the jury's consideration. Additionally, the court assessed whether the trial judge erred in not including alternative verdicts of rape or indecent treatment for the jury. The court also scrutinised the trial judge's handling of the uncorroborated evidence of the child complainant and whether the judge adequately addressed the potential for childhood fantasy and the risk of miscarriage of justice.
The court concluded that the trial judge did not err in omitting the alternative verdict of attempted rape as it did not fairly arise from the evidence. The court found that the trial judge's directions to the jury were adequate and that the failure to give a Longman direction did not constitute a miscarriage of justice. The court held that the evidence, though uncorroborated, was sufficient to support the conviction. Consequently, the appeal was dismissed, and the convictions were upheld.