R v McMullen - [2011] QCA 153

SUPREME COURT OF QUEENSLAND

CITATION:

R v McMullen [2011] QCA 153

PARTIES:

R
v
McMULLEN, Bradley Wayne
(appellant)

FILE NO/S:

CA No 251 of 2010
DC No 216 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

1 July 2011

DELIVERED AT:

Brisbane

HEARING DATE:

23 May 2011

JUDGES:

Margaret McMurdo P, Cullinane and Jones JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal against conviction dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL –PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was convicted of three counts of rape and two accounts of assault occasioning bodily harm – where the appellant was found not guilty on one count of assault occasioning bodily harm, deprivation of liberty, threatening violence and rape – whether the verdicts can be reconciled as logical and reasonable – whether the verdicts of guilty are inconsistent with the verdicts of acquittal

CRIMINAL LAW – EVIDENCE – PROPENSITY, TENDENCY AND CO-INCIDENCE – DIRECTIONS TO JURY – where the appellant contended that evidence of domestic violence, the appellant's drug use and other discreditable conduct was not admissible at trial – where the appellant argued that if such evidence was admissible the jury should have been given careful directions as to the use to be made of such evidence – where the failure to give an adequate direction to the jury as to discreditable conduct and the dangers of propensity reasoning was an error in law – whether this failure resulted in a miscarriage of justice

Criminal Code 1899 (Qld), s 668E(1), s 668E(1A)

HML v The Queen (2008) 235 CLR 334; [2008] HCA 16, cited
MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, applied
R v Kirkman (1987) 44 SASR 591, cited
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, cited
R v Self [2001] QCA 338, cited
Roach v The Queen [2011] HCA 12, applied
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, cited

COUNSEL:

K Prskalo for the appellant
M R Byrne SC for the respondent

SOLICITORS:

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

MARGARET McMURDO P: The appellant, pleaded not guilty to four counts of rape (counts 3, 6, 7 and 8); three counts of assault occasioning bodily harm (counts 1, 2 and 9); one count of deprivation of liberty (count 4) and one count of threatening violence (count 5). After a four day trial in the District Court at Townsville he was convicted of three counts of rape (counts 3, 7 and 8); and two counts of assault occasioning bodily harm (counts 1 and 9). He was found not guilty on all remaining counts (counts 2, 4, 5 and 6). He appeals only against his conviction on two grounds. The first is that the verdicts…

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 McMullen

Details

AGLC: R v McMullen [2011] QCA 153
Case: [2011] QCA 153
Decision Date: 1 July 2011

CaseChat Overview and Summary

The case of R v McMullen involved an appellant who was convicted of three counts of rape and two counts of assault occasioning bodily harm. However, the appellant was acquitted on one count of assault occasioning bodily harm, deprivation of liberty, threatening violence, and rape. The appellant appealed against his conviction, arguing that the verdicts were inconsistent and that the trial judge failed to adequately direct the jury on the admissibility and use of evidence of the appellant's prior conduct. The appellant submitted that the evidence of domestic violence, drug use and other discreditable conduct was not admissible, and if it was, the jury should have been carefully directed as to how such evidence could be used. The appellant contended that the failure to give an adequate direction to the jury was an error in law which resulted in a miscarriage of justice.

The legal issues before the court were whether the verdicts could be reconciled as logical and reasonable, and whether the failure to give an adequate direction to the jury as to the use of discreditable conduct and the dangers of propensity reasoning was an error in law which resulted in a miscarriage of justice. The court examined the evidence and submissions made by the parties and considered the principles of law applicable to the admissibility and use of evidence of discreditable conduct. The court also considered whether the failure to give an adequate direction to the jury was an error in law which resulted in a miscarriage of justice.

The court found that the verdicts could be reconciled as logical and reasonable, and that the failure to give an adequate direction to the jury as to the use of discreditable conduct and the dangers of propensity reasoning was not an error in law which resulted in a miscarriage of justice. The court held that the evidence of domestic violence and drug use was relevant to the appellant's character and propensity to commit the offences, and that the trial judge had given adequate directions to the jury as to the limited use of such evidence. The court also held that the evidence of discreditable conduct was properly admitted to prove matters in issue, and that the failure to give an adequate direction to the jury as to the use of such evidence was not an error in law which resulted in a miscarriage of justice. The appeal against conviction was therefore dismissed.

Orders

Orders of the court

Appeal against conviction 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 McMullen [2011] QCA 153
PARTIES:	R v McMULLEN, Bradley Wayne (appellant)
FILE NO/S:	CA No 251 of 2010 DC No 216 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	1 July 2011
DELIVERED AT:	Brisbane
HEARING DATE:	23 May 2011
JUDGES:	Margaret McMurdo P, Cullinane and Jones JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal against conviction dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL –PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was convicted of three counts of rape and two accounts of assault occasioning bodily harm – where the appellant was found not guilty on one count of assault occasioning bodily harm, deprivation of liberty, threatening violence and rape – whether the verdicts can be reconciled as logical and reasonable – whether the verdicts of guilty are inconsistent with the verdicts of acquittal CRIMINAL LAW – EVIDENCE – PROPENSITY, TENDENCY AND CO-INCIDENCE – DIRECTIONS TO JURY – where the appellant contended that evidence of domestic violence, the appellant's drug use and other discreditable conduct was not admissible at trial – where the appellant argued that if such evidence was admissible the jury should have been given careful directions as to the use to be made of such evidence – where the failure to give an adequate direction to the jury as to discreditable conduct and the dangers of propensity reasoning was an error in law – whether this failure resulted in a miscarriage of justice Criminal Code 1899 (Qld), s 668E(1), s 668E(1A) HML v The Queen (2008) 235 CLR 334; [2008] HCA 16, cited MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, applied R v Kirkman (1987) 44 SASR 591, cited R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, cited R v Self [2001] QCA 338, cited Roach v The Queen [2011] HCA 12, applied Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, cited
COUNSEL:	K Prskalo for the appellant M R Byrne SC for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent