R v MCJ

Case [2017] QCA 11

SUPREME COURT OF QUEENSLAND

CITATION:

R v MCJ [2017] QCA 11

PARTIES:

R
v
MCJ
(appellant)

FILE NO/S:

CA No 63 of 2016
DC No 312 of 2016
DC No 1812 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 19 February 2016

DELIVERED ON:

10 February 2017

DELIVERED AT:

Brisbane

HEARING DATE:

18 November 2016

JUDGES:

Margaret McMurdo P and Gotterson JA and Henry J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The appeal be allowed.

2.   The appellant’s convictions on counts 1, 2, 3, 4, 5, 6, 7, 9, 10, 11, 12, 13 and 15 of the indictment be quashed.

3.   The appellant be retried upon those counts of the indictment.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the appellant was charged on a 13 count indictment with one count of maintaining a sexual relationship with a child with a circumstance of aggravation, three counts of indecent treatment of a child under 12 in his care, five counts of indecent treatment of a child under 12 and four counts of rape – where the appellant contended that the judge failed to adequately give a direction in terms of Robinson v The Queen (1999) 197 CLR 162 – whether there was a misdirection or non-direction – whether a miscarriage of justice occurred

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where a note the complainant had written was an exhibit at trial – where the appellant submits the jury was not properly directed as to how it could use the evidence of the note – whether the jury was properly directed – whether a miscarriage of justice occurred

Criminal Code (Qld), s 23B
Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A
Evidence Act and Other Acts Amendment Act 1989 (Qld), s 93A, s 132C

Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, applied
Gately v The Queen (2007) 232 CLR 208; [2007] HCA 55, applied
Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, cited
R v BBH[2007] QCA 348, cited
R v MBX [2014] 1 Qd R 438; [2013] QCA 214, cited
Ratten v The Queen [1972] AC 378; [1971] UKPC 23, applied
Roach v The Queen (2011) 242 CLR 610; [2011] HCA 12, distinguished
Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, cited
Walton v The Queen (1989) 166 CLR 283; [1989] HCA 9, applied

COUNSEL:

A J Edwards for the appellant
J Robson for the respondent

SOLICITORS:

Peter Shields Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. MARGARET…

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AGLC
R v MCJ [2017] QCA 11
Case
[2017] QCA 11
Decision Date

CaseChat Overview and Summary

The appellant, MCJ, was convicted on 13 counts related to maintaining a sexual relationship with a child under 12, indecent treatment of a child under 12, and rape. The primary legal issues in the appeal were whether there was a misdirection or non-direction by the trial judge and if this amounted to a miscarriage of justice. Specifically, the appellant argued that the trial judge failed to adequately direct the jury regarding the use of a note written by the complainant. The note was an exhibit at trial, but the appellant contended that the jury was not properly directed on how it could use this evidence.

The court examined whether the jury was properly directed on the use of the note, considering the statutory provisions regarding complaints of sexual assault. The court concluded that the trial judge's failure to direct the jury adequately constituted a miscarriage of justice. The reasoning was that the jury might have used the note in a way that affected the verdicts impermissibly, as the jury was not sufficiently instructed to be satisfied that the note referred to physical sexual interaction between the appellant and the complainant. Additionally, the court noted that the jury should have been instructed on the truthfulness and reliability of the note's content and which charges it was relevant to.

The court quashed the appellant's convictions and ordered a retrial on the specified counts. The court also highlighted that it was desirable for the jury to be directed on the truthfulness and reliability of the note and its relevance to specific charges, although this did not need to be resolved in the current appeal. The final orders were that the appeal be allowed, the convictions on the specified counts be quashed, and the appellant be retried on those counts.

Orders

Orders of the court

1. The appeal be allowed.

2. The appellant’s convictions on counts 1, 2, 3, 4, 5, 6, 7, 9, 10, 11, 12, 13 and 15 of the indictment be quashed.

3. The appellant be retried upon those counts of the indictment.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Reasoning of this kind is now well recognised as being without proper foundation and failing to allow for the reality that the making of a complaint of sexual assault for any complainant, let alone a child, is a harrowing experience.[25] Indeed the inappropriateness of giving judicial imprimatur to such reasoning was made plain by the legislature in 2003 by the insertion of s 4A in the Criminal Law (Sexual Offences) Act 1978. That section provides:[25]See, for example, R v BBH [2007] QCA 348, [35].“4AEvidence of complaint generally admissible...(2)Evidence of how and when any preliminary complaint was made by the complainant about the alleged commission of the offence by the defendant is admissible in evidence, regardless of when the preliminary complaint was made....(4)If a defendant is tried by a jury, the judge must not warn or suggest in any way to the jury that the law regards the complainant's evidence to be more reliable or less reliable only because of the length of time before the complainant made a preliminary or other complaint.(5)Subject to subsection (4), the judge may make any comment to a jury on the complainant's evidence that it is appropriate to make in the interests of justice.(6)In this section—complaint includes a disclosure.preliminary complaint means any complaint other than—(a)the complainant's first formal witness statement to a police officer given in, or in anticipation of, a criminal proceeding in relation to the alleged offence; or(b)a complaint made after the complaint mentioned in paragraph (a). …” (Emphasis added) The appellant’s submissions implicitly seek to avoid the consequences of s 4A(4) by focusing the argument not so much upon the lapse of time between the circumstances in question and the offending behaviour and rather upon these being circumstances in which the complainant, if telling the truth, ought be expected to have disclosed more in each instance. Whether such reasoning avoids the effect of s 4A(4) does not need to be resolved. The flaw in the outdated reasoning relied upon in support of circumstances (f), (g) and (h) is readily apparent on the facts of the case. In respect of circumstance (f), it is not surprising on the facts of the case that a child who had been sexually abused by her uncle for years, when caught out leaving a note for her uncle indicating she did not think “we should do the things we do anymore”, did not reveal all to her mother. As much is made even plainer by the evidence that the appellant had told the complainant if she told anyone about what happened she would be in trouble and no-one would believe her.[26] Indeed of the very occasion contemplated by circumstance (f), the occasion when the complainant’s mother confronted her about the note, the complainant testified she had not said more at that time because she was “too scared”.[27][26]AR 51 L44, AR 65 L11.[27]AR 65 L4. The same considerations are relevant to circumstance (g). Even though she was still in her early teens when she disclosed there had been cunnilingus, it may well have remained too harrowing for her to disclose that she had been digitally penetrated and had performed oral sex upon the appellant.

Decision

Reasons for decision

For these reasons it is reasonably possible that the failure to direct of the need to be satisfied the note’s reference to “the things we do” was to physical sexual interaction between the appellant and complainant, and not some lesser conduct, may have resulted in the impermissible use of the note in a way which affected the verdicts. The failure to so direct the jury therefore constituted a miscarriage of justice.Conclusion It follows the convictions must be quashed and a re-trial ordered. This conclusion and the pathway to it made it unnecessary to express a view as to whether two other matters, not the subject of argument, also needed to be specifically addressed in the direction or were sufficiently covered by implication amidst other general directions. However, given the prospect of a re-trial it is helpful to identify those two matters, on the basis specific directions about them would at least have been desirable. Firstly, it was desirable for the jury to have been instructed that before it could use the note as evidence of the nature of the relationship it was necessary to be satisfied the note’s content was truthful and reliable and not the product of imaginings or untruths or a prank. As part of such a direction the jury should have been instructed to consider whether the note was actually intended to be a private communication or was left with the intention it would be found by the complainant’s aunt or mother. On either scenario the document would be admissible pursuant to s 93A. However, if it were not a genuine letter to the appellant - as on its face it professes to be - then the probative force apparently deriving from the note being a private communication in the course of the relationship should be disregarded and the fact of such a misrepresentation should be taken into account in considering the truthfulness of the note’s factual content. Secondly, it was desirable for the jury to be told which of the charges the note was relevant to and in what way. The note was relevant in proof of the charge of maintaining a sexual relationship with a child because it was circumstantial evidence tending to show there had been a relationship involving sexual behaviour occurring as between the appellant and complainant. However, it did not refer to any specific episode with particularity so its relevance to the other charges was not in proof of them and was confined to the general support it potentially gave to the complainant’s credibility. I would order:1.The appeal be allowed.2.The appellant’s convictions on counts 1, 2, 3, 4, 5, 6, 7, 9, 10, 11, 12, 13 and 15 of the indictment be quashed.3.The appellant be retried upon those counts of the indictment.

Ratio Decidendi

Legal Principle Established

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