R v MCD - [2014] QCA 326

SUPREME COURT OF QUEENSLAND

CITATION:

R v MCD [2014] QCA 326

PARTIES:

R
v
MCD
(appellant)

FILE NO/S:

CA No 224 of 2014
DC No 681 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

12 December 2014

DELIVERED AT:

Brisbane

HEARING DATE:

2 December 2014

JUDGES:

Margaret McMurdo P and Gotterson and Morrison JJA
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 – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the appellant was convicted on three counts of unlawfully dealing with a child under 12 years of age against the same complainant – where the offending took place between 1 January 2009 and 31 December 2009 – where the complainant reported the offending in May 2013 – where the learned trial judge gave the jury a Longman direction – where the direction was not given in the particular words “So I warn you that it would be dangerous to convict upon the complainant’s testimony alone” – whether the direction given fell short of what is required of a Longman direction

Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, cited
R v MBX[2013] QCA 214, cited
R v TJ (2009) 76 NSWLR 167; [2009] NSWCCA 257, cited
Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, cited

COUNSEL:

D Kent QC for the appellant
M R Byrne QC for the respondent

SOLICITORS:

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

MARGARET McMURDO P: I agree with Gotterson JA's reasons for dismissing this appeal against conviction.

GOTTERSON JA: On 8 August 2014 and at the conclusion of a trial in the District Court at Brisbane, the appellant, MCD, was convicted on three counts of unlawfully and indecently dealing with a child under 12 years of age. Each count alleged an offence against s 210(1)(a) of the Criminal Code (Qld) for which the appellant was liable upon conviction to a maximum sentence of 20 years’ imprisonment: s 210(3). The same female child was the complainant for each count. Counts 1, 2 and 3 each alleged offending on a date unknown between 1 January 2009 and 31 December 2009 and Murrumba Downs. The complainant was born on 5 October 2001.

Upon conviction, the appellant was sentenced on each count to imprisonment for 12 months, such sentence to be suspended after serving six months with an operational period of two years. On 25 August 2014, the appellant filed a notice of appeal against the convictions.

Circumstances of the alleged offending

At the time of the alleged offences, the complainant lived with her mother, an auntie and others at a house at Murrumba Downs. Previously the appellant had been in a relationship with 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 MCD

Details

AGLC: R v MCD [2014] QCA 326
Case: [2014] QCA 326
Decision Date: 12 December 2014

CaseChat Overview and Summary

In the case of R v MCD, the appellant was convicted on three counts of unlawfully dealing with a child under 12 years of age against the same complainant. The offending occurred between 1 January 2009 and 31 December 2009, and was reported by the complainant in May 2013. The trial judge provided the jury with a Longman direction, which is a warning to jurors about the dangers of convicting solely on the testimony of a complainant. However, the direction did not include the specific warning that it would be dangerous to convict based on the complainant's testimony alone. The court was required to decide whether the direction given by the trial judge fell short of what is required of a Longman direction.

The court found that the direction given by the trial judge was sufficient and did not fall short of what is required of a Longman direction. The court held that the direction was still effective in warning the jury about the dangers of convicting solely on the testimony of a complainant, even if it did not use the specific warning that it would be dangerous to convict based on the complainant's testimony alone. The court also noted that the trial judge had given other directions to the jury that reinforced the warning about the dangers of convicting solely on the testimony of a complainant. The court held that the direction given by the trial judge was sufficient to protect the appellant's rights and that the appellant's conviction was therefore valid.

The appeal was dismissed, and the conviction of the appellant was upheld. The court found that the direction given by the trial judge was sufficient to protect the appellant's rights and that the appellant's conviction was therefore valid. The court held that the direction given by the trial judge was sufficient to warn the jury about the dangers of convicting solely on the testimony of a complainant, even if it did not use the specific warning that it would be dangerous to convict based on the complainant's testimony alone. The court also noted that the trial judge had given other directions to the jury that reinforced the warning about the dangers of convicting solely on the testimony of a complainant.

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 MCD [2014] QCA 326
PARTIES:	R v MCD (appellant)
FILE NO/S:	CA No 224 of 2014 DC No 681 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	12 December 2014
DELIVERED AT:	Brisbane
HEARING DATE:	2 December 2014
JUDGES:	Margaret McMurdo P and Gotterson and Morrison JJA 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 – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the appellant was convicted on three counts of unlawfully dealing with a child under 12 years of age against the same complainant – where the offending took place between 1 January 2009 and 31 December 2009 – where the complainant reported the offending in May 2013 – where the learned trial judge gave the jury a Longman direction – where the direction was not given in the particular words “So I warn you that it would be dangerous to convict upon the complainant’s testimony alone” – whether the direction given fell short of what is required of a Longman direction Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, cited R v MBX[2013] QCA 214, cited R v TJ (2009) 76 NSWLR 167; [2009] NSWCCA 257, cited Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, cited
COUNSEL:	D Kent QC for the appellant M R Byrne QC for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent