R v McDonald - [2020] QDC 171

DISTRICT COURT OF QUEENSLAND

CITATION:

R v McDonald [2020] QDC 171.

PARTIES:

THE QUEEN

v

LACHLAN JOHN MCDONALD

FILE NO/S:

Sout-DIS 717/19

DIVISION:

Criminal

PROCEEDING:

Trial

ORIGINATING COURT:

District Court of Queensland at Southport

DELIVERED ON:

24 July 2020

DELIVERED AT:

Southport

HEARING DATES:

13, 14, & 15 July 2020.

JUDGE:

Muir DCJ

VERDICT:

Count 1: Guilty

CATCHWORDS:

CRIMINAL LAW – TRIAL HAD BEFORE JUDGE WITHOUT JURY – VERDICT – where defendant is charged with 1 count of attempted child stealing – whether the defendant is guilty or not guilty of the charge

CRIMINAL LAW – TRIAL HAD BEFORE JUDGE WITHOUT JURY – ATTEMPTS – whether the defendant’s actions amounted to an attempt to commit the relevant offence

CRIMINAL LAW – TRIAL HAD BEFORE JUDGE WITHOUT JURY – EVIDENCE – INTENT – where evidence of defendant’s intent is largely circumstantial – whether defendant’s intent is made out by the crown beyond reasonable doubt

CRIMINAL LAW – TRIAL HAD BEFORE JUDGE WITHOUT JURY – EVIDENCE – where defendant’s record of interview was played – where evidence of the complainant was pre-recorded in accordance with the Evidence Act – where the complainant gave reports of events to others immediately after the alleged offending – where those reports cannot be used for impermissible hearsay purpose – where the credibility and reliability of the complainant is key – whether there is no other rational explanation for the defendant’s conduct other than he intended to steal the complainant.

LEGISLATION:

Criminal Code 1899 (Qld) ss 4, 363, 535, 615B, 615.
Evidence Act 1977 (Qld) ss 93A, 21A, 21AW.

CASES CITED:

R v Mulcahy [2010] ACTSC 98.

Nguyen v R [2012] ACTCA 24.

R v MMH [2020] QDC 70.

R v Baille (1859) 8 Cox CC 238.

R v Timmins (1860) Bell CC 27.

R v De Silva [2007] QCA 301.

COUNSEL:

Ms J Guy for the Crown
Mr JA McNabb for the Accused

SOLICITORS:

Director of Public Prosecutions for the Crown
Brooke Winters Solicitors for the Accused

Overview

On the morning of 1 April 2019, Lachlan John McDonald, the 36 year old male defendant[1], offered a 13 year school boy – who was unknown to him – a lift up the road to a nearby bus stop.[2] This offer was rejected by the boy. But as a result of this incident, the defendant was charged on indictment with one count of attempted child stealing pursuant to s 363(1)(a) and 535(1) of the Criminal Code (Qld) 1899. More particularly, the allegation is that on 1 April 2019 he attempted to fraudulently entice away the boy (the complainant child who was under 16 years) by offering him a lift up to the bus stop, with intent to deprive the complainant’s mother of possession of her child.
[1]The defendant was born on 22 February 1983 – so he was 36 at the time of the alleged offence and 37 at the time of the trial.
[2]The complainant was 13 at the time of the alleged…

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 McDonald

Details

AGLC: R v McDonald [2020] QDC 171
Case: [2020] QDC 171
Decision Date: 24 July 2020

CaseChat Overview and Summary

The matter before the court was a trial by judge alone, where the defendant, McDonald, was charged with one count of attempted child stealing. The defendant's actions were alleged to have constituted an attempt to commit the offence of stealing a child. The court was tasked with determining whether the defendant was guilty or not guilty of the charge.

The primary legal issues that the court had to resolve were whether the defendant's actions amounted to an attempt to commit the offence of child stealing, and if so, whether the intent of the defendant to steal the child was proven beyond reasonable doubt. The court had to consider whether the evidence presented, which was largely circumstantial, was sufficient to establish the defendant's intent to commit the offence.

The court found that the defendant's actions did amount to an attempt to commit the offence, as they were more than mere preparation and went beyond any innocent activity. The court also concluded that the defendant's intent was made out by the crown beyond reasonable doubt. The court placed significant weight on the credibility and reliability of the complainant, whose immediate reports of the events to others supported her testimony. The court determined that there was no other rational explanation for the defendant's conduct other than the intent to steal the complainant.

The court found the defendant guilty of the charge of attempted child stealing. The court ordered that the defendant be remanded in custody pending sentencing.

Orders