R v MCJ (No 2) - [2019] QCA 174

SUPREME COURT OF QUEENSLAND

CITATION:

R v MCJ (No 2) [2019] QCA 174

PARTIES:

R
v
MCJ
(appellant)

FILE NO/S:

CA No 292 of 2017
DC No 2582 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction
Miscellaneous Application – Criminal

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 17 November 2017 (McGinness DCJ)

DELIVERED ON:

6 September 2019

DELIVERED AT:

Brisbane

HEARING DATE:

9 May 2019

JUDGES:

Gotterson and McMurdo JJA and Mullins J

ORDERS:

1. Application to adduce further evidence refused.

2. Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was found guilty of 12 counts of various sexual offences – where the trial from which this appeal arises was a re-trial – where the appellant contended that the complainant’s evidence at the re-trial was tainted by contradictions, inconsistencies, recent inventions and changes in her evidence between trials and received little support from other adult witnesses who gave evidence at the re-trial – whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of each offence

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where the appellant was found guilty of 12 counts of various sexual offences – where the trial from which this appeal arises was a re-trial – where, during the re-trial, the complainant and her brother were asked whether they had previously given evidence or had given sworn testimony on a previous occasion – where the fact that reference might be made to a previous trial was brought up by counsel but no direction was sought and none was given – whether, notwithstanding that such a direction was not sought, a miscarriage of justice resulted from an absence of a direction about the previous trial

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where, during deliberations, the jury made a request to hear again evidence given by the complainant’s aunt about a conversation – where the learned trial judge reminded the jury that the complainant’s aunt was the only person who gave evidence about that conversation – where the learned trial judge’s associate in fact read to the jury the evidence given by the complainant’s mother about that conversation – where the learned trial judge confirmed with the parties in front of the jury that both the complainant’s mother and her aunt gave evidence of that conversation – where the learned trial judge’s associate then read out evidence of the conversation given by the complainant’s aunt – where the appellant submitted on appeal that a miscarriage of justice had resulted because the learned trial judge’s response to the jury’s request was incorrect and the jury had been confused – whether a miscarriage of justice was occasioned

CRIMINAL…

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 MCJ (No 2)

Details

AGLC: R v MCJ (No 2) [2019] QCA 174
Case: [2019] QCA 174
Decision Date: 6 September 2019

CaseChat Overview and Summary

The appeal arose from a re-trial of the appellant, who was found guilty of twelve counts of various sexual offences. The appellant argued that the jury’s verdict was unreasonable or insupportable when considering the evidence presented. The court needed to decide whether the jury could be satisfied beyond reasonable doubt of the appellant’s guilt based on the evidence, whether the lack of a direction about the previous trial resulted in a miscarriage of justice, whether the jury’s request to hear evidence again was handled correctly by the trial judge, and whether the prosecutor’s conduct led to a miscarriage of justice.

The court determined that the jury's verdict was not unreasonable, as the evidence supported the conclusion that the appellant was guilty beyond reasonable doubt. The court found no miscarriage of justice resulted from the absence of a direction about the previous trial, as no such direction was sought. The court also ruled that the trial judge's response to the jury’s request to hear evidence again was handled correctly, and there was no evidence that the jury was confused. Regarding the prosecutor’s conduct, the court found that there was no misleading of the jury, improper suggestion that the complainant would not have a motive to lie, or expression of personal opinions by the prosecutor.

Additionally, the court found that the directions given by the trial judge about the note were adequate, and no further directions were necessary. The court concluded that the trial did not result in a miscarriage of justice and dismissed the appeal. The orders included the refusal of the application to adduce further evidence and the dismissal of the appeal.

Orders

Orders of the court

1. Application to adduce further evidence refused.

2. Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Alleged misleading of the jury – L’s evidence: The contention here is that whereas the prosecutor told the jury in the opening that L would give evidence in relation to Counts 4 and 5, L did not, in fact, give evidence of the offending alleged in those counts.[86] It was misleading for the prosecutor to have described the evidence that L would, and did, give of what he saw the appellant doing to the complainant in the shed as “relevant” to Counts 4 and 5.[86]Transcript of Opening page 4 ll31-36. I do not consider that the jury was misled in its deliberations by what was said by the prosecutor in the opening. That is so because in his address, the prosecutor described the evidence that L did give as corroborative of the complainant’s evidence that the appellant had committed oral sex on her.[87] That was undoubtedly so. The prosecutor went on to tell the jury specifically that L had not given any evidence of an incident in which he was photographed on top of the complainant.[88] Furthermore, and importantly, in summing up, the learned trial judge reminded the jury that L had not given evidence of such an incident.[89][87]AB 236 ll23-46.[88]AB 237 ll4-5.[89]AB 293 l5. Alleged misleading of the jury – dates: This allegation was centred upon a statement by the prosecutor in his address that the date for the Counts 4 and 5 offending was within the period from which L turned three years of age (on 25 April 2000) and 30 April 2001, by which time he had just turned four years of age.[90] That the statement was misleading was, the appellant suggested, because the period in which both offences were alleged in the indictment to have been committed was between 30 April 2000 and 1 July 2000.[91][90]AB 239 ll16-18.[91]AOS paragraph 29. No objection was taken by defence counsel to what the prosecutor had said. Presumably that was because defence counsel had not raised an issue by way of defence that was dependent upon the date on which the alleged photographing of the complainant and L had taken place. The thrust of the cross examination was to question the complainant’s memory of the number of times the flashlight on the appellant’s camera went off during the photographing and why it was that she had omitted reference to that in her statement to police.[92][92]AB 60 Tr1-49 ll24 – AB 61 Tr 1-50 l20. Thus, the challenge was as to the reliability of the complainant’s evidence that the appellant placed L on her when they were both naked and proceeded to photograph them. It follows, in my view, that the appellant was not disadvantaged in his defence of these counts by the timeframe to which the prosecutor referred in his address. Motive to lie: The appellant’s proposition is that a miscarriage of justice was occasioned by a combination of an improper suggestion by the prosecutor that the complainant would not have had a motive to lie and a failure by the learned trial judge to correct the suggestion. In contending that such a suggestion had been made, the appellant instanced the invitation made by the prosecutor in his address to “infer that (the complainant) was not someone who has come along to court with a concocted version about false events”[93] and that the complainant “would not have written those words unless they were true”[94] when referring to the words in the note.[95][93]AB 235 ll28-29.[94]AB 232 l12.[95]AOS paragraph 30.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	R v MCJ (No 2) [2019] QCA 174
PARTIES:	R v MCJ (appellant)
FILE NO/S:	CA No 292 of 2017 DC No 2582 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction Miscellaneous Application – Criminal
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 17 November 2017 (McGinness DCJ)
DELIVERED ON:	6 September 2019
DELIVERED AT:	Brisbane
HEARING DATE:	9 May 2019
JUDGES:	Gotterson and McMurdo JJA and Mullins J
ORDERS:	1. Application to adduce further evidence refused. 2. Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was found guilty of 12 counts of various sexual offences – where the trial from which this appeal arises was a re-trial – where the appellant contended that the complainant’s evidence at the re-trial was tainted by contradictions, inconsistencies, recent inventions and changes in her evidence between trials and received little support from other adult witnesses who gave evidence at the re-trial – whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of each offence CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where the appellant was found guilty of 12 counts of various sexual offences – where the trial from which this appeal arises was a re-trial – where, during the re-trial, the complainant and her brother were asked whether they had previously given evidence or had given sworn testimony on a previous occasion – where the fact that reference might be made to a previous trial was brought up by counsel but no direction was sought and none was given – whether, notwithstanding that such a direction was not sought, a miscarriage of justice resulted from an absence of a direction about the previous trial CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where, during deliberations, the jury made a request to hear again evidence given by the complainant’s aunt about a conversation – where the learned trial judge reminded the jury that the complainant’s aunt was the only person who gave evidence about that conversation – where the learned trial judge’s associate in fact read to the jury the evidence given by the complainant’s mother about that conversation – where the learned trial judge confirmed with the parties in front of the jury that both the complainant’s mother and her aunt gave evidence of that conversation – where the learned trial judge’s associate then read out evidence of the conversation given by the complainant’s aunt – where the appellant submitted on appeal that a miscarriage of justice had resulted because the learned trial judge’s response to the jury’s request was incorrect and the jury had been confused – whether a miscarriage of justice was occasioned CRIMINAL…