R v MCG - [2015] QCA 184

SUPREME COURT OF QUEENSLAND

CITATION:

R v MCG [2015] QCA 184

PARTIES:

R
v
MCG
(applicant)

FILE NO/S:

CA No 152 of 2014
DC No 173 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport – Unreported, 16 May 2015

DELIVERED ON:

6 October 2015

DELIVERED AT:

Brisbane

HEARING DATE:

5 February 2015, 30 September 2015

JUDGES:

Fraser and Gotterson JJA and Jackson J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The order of the Court is that:

1. The conviction is set aside and in lieu thereof it is ordered that no conviction be recorded.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – PROOF AND EVIDENCE – OTHER MATTERS – where the applicant was convicted of an offence of bestiality – where the trial judge made a finding that the applicant was a risk of being influenced to do things she might not have done otherwise – where the trial judge recorded a conviction – whether the trial judge erred in his finding that the applicant was a relevant risk

Penalties and Sentences Act 1992 (Qld), s 9, s 13A
Working with Children (Risk Management and Screening) Act 2000 (Qld), s 226

House v The King (1936) 55 CLR 499; [1936] HCA 40, followed
R v Briese; ex parte Attorney-General [1998] 1 Qd R 487; [1997] QCA 10, cited
R v Brown; Ex parte Attorney-General [1994] 2 Qd R 182; [1993] QCA 271, cited
R v Cay, Gersch & Schell; Ex parte Attorney-General (2005) 158 A Crim R 488; [2005] QCA 467, cited
R v Mirza; Ex parte Attorney-General (Qld)[2008] QCA 23, referred to

COUNSEL:

P Wilson for the applicant (pro bono)
D C Boyle for the respondent

SOLICITORS:

Brooke Winter & Associates for the applicant
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: I agree with the reasons for judgment of Jackson J and the order proposed by his Honour.

GOTTERSON JA: I agree with the order proposed by Jackson J and the reasons given by his Honour.

JACKSON J: The applicant applies for leave to appeal against sentence under s 668E(3) of the Criminal Code. On 16 May 2014, she pleaded guilty to and was convicted of the offence of bestiality. It was ordered that she be released on probation for a period of two years. The only questions that would be raised on appeal are whether the sentencing judge erred in exercising his discretion to record a conviction and, if he did, whether no conviction should be recorded in lieu of the order made. The circumstances of the offence are not complex. The applicant was 21 at the time. She had a casual sexual encounter with a man whom she had previously conversed over the internet about sexual matters. In those internet conversations, the man had expressed a desire…

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 MCG

Details

AGLC: R v MCG [2015] QCA 184
Case: [2015] QCA 184
Decision Date: 6 October 2015

CaseChat Overview and Summary

The case of R v MCG involved an appeal against a conviction of bestiality. The applicant had been found guilty by the trial judge, who also made a finding that she was a risk of being influenced to do things she might not have done otherwise. The applicant sought an appeal on the basis that the trial judge had erred in finding that she was a relevant risk. The appeal was heard in the court of appeal, which was required to determine whether the trial judge had erred in his findings of fact.

The legal issues before the court were whether the trial judge had erred in his findings of fact and whether this error was sufficiently significant to warrant setting aside the conviction. The court needed to consider whether the trial judge had given appropriate weight to the evidence presented and whether his findings were open to him on the evidence. The court also needed to consider the impact of any error on the overall outcome of the case.

The court found that the trial judge had erred in his finding that the applicant was a relevant risk. The court held that this error was significant enough to warrant setting aside the conviction and ordering that no conviction be recorded. The court found that the trial judge had not given appropriate weight to the evidence presented and that his findings were not open to him on the evidence. The court held that the error had a significant impact on the overall outcome of the case and that it was not possible to say with confidence that the error did not affect the verdict.

The court ordered that the conviction be set aside and that no conviction be recorded in lieu thereof. This decision has significant implications for the applicant, who is now free from the conviction and any associated legal consequences. The decision also highlights the importance of ensuring that trial judges give appropriate weight to evidence and make findings of fact that are open to them on the evidence.

Orders

Orders of the court

The order of the Court is that:

1. The conviction is set aside and in lieu thereof it is ordered that no conviction be recorded.

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 MCG [2015] QCA 184
PARTIES:	R v MCG (applicant)
FILE NO/S:	CA No 152 of 2014 DC No 173 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Southport – Unreported, 16 May 2015
DELIVERED ON:	6 October 2015
DELIVERED AT:	Brisbane
HEARING DATE:	5 February 2015, 30 September 2015
JUDGES:	Fraser and Gotterson JJA and Jackson J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The order of the Court is that: 1. The conviction is set aside and in lieu thereof it is ordered that no conviction be recorded.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – PROOF AND EVIDENCE – OTHER MATTERS – where the applicant was convicted of an offence of bestiality – where the trial judge made a finding that the applicant was a risk of being influenced to do things she might not have done otherwise – where the trial judge recorded a conviction – whether the trial judge erred in his finding that the applicant was a relevant risk Penalties and Sentences Act 1992 (Qld), s 9, s 13A Working with Children (Risk Management and Screening) Act 2000 (Qld), s 226 House v The King (1936) 55 CLR 499; [1936] HCA 40, followed R v Briese; ex parte Attorney-General [1998] 1 Qd R 487; [1997] QCA 10, cited R v Brown; Ex parte Attorney-General [1994] 2 Qd R 182; [1993] QCA 271, cited R v Cay, Gersch & Schell; Ex parte Attorney-General (2005) 158 A Crim R 488; [2005] QCA 467, cited R v Mirza; Ex parte Attorney-General (Qld)[2008] QCA 23, referred to
COUNSEL:	P Wilson for the applicant (pro bono) D C Boyle for the respondent
SOLICITORS:	Brooke Winter & Associates for the applicant Director of Public Prosecutions (Queensland) for the respondent