R v MCN - [2018] QCA 101

SUPREME COURT OF QUEENSLAND

CITATION:

R v MCN [2018] QCA 101

PARTIES:

R
v
MCN
(appellant)

FILE NO/S:

CA No 49 of 2018
DC No 380 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 1 March 2018 (Sheridan DCJ)

DELIVERED ON:

1 June 2018

DELIVERED AT:

Brisbane

HEARING DATE:

25 May 2018

JUDGES:

Sofronoff P and Morrison JA and Atkinson J

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – CORROBORATION – WARNING REQUIRED OR ADVISABLE – WHERE SUBSTANTIAL DELAY IN COMPLAINT: LONGMAN WARNING – where the appellant was convicted of two counts of sexual offences against his daughter – where there was a three year period between when the offences occurred and the appellant was brought to trial – where the matter involved a child complainant – where both counsel agreed that a Longman direction should be given– where counsel for the appellant submitted on appeal that the direction given appeared to be an amalgamation of a Longman direction and a Robinson direction – where the trial judge did not warn the jury that it would be “dangerous” to convict – whether the direction was adequate or occasioned a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – where some formal admissions were made at the trial – where the jury were expressly told the location of the offences and the specific time period in which they occurred – whether the jury were directed that in addition to being satisfied of the elements of the offence they must also be satisfied of these particulars before they could convict

Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, cited
R v MBX [2014] 1 Qd R 438; [2013] QCA 214, applied
R v Tichowitsch [2007] 2 Qd R 462; [2006] QCA 569, cited
Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, cited
Tully v The Queen (2006) 230 CLR 234; [2006] HCA 56, cited

COUNSEL:

R A East for the appellant
T A Fuller QC for the respondent

SOLICITORS:

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

SOFRONOFF P: I agree with the reasons of Morrison JA and the order proposed by his Honour.
MORRISON JA: The appellant was charged on three counts of sexual offences against his daughter, who was under the age of 12 at the time. After a three day trial he was acquitted on count 1 and convicted on counts 2 and 3. Each of counts 2 and 3 was framed as follows:
“… on a date unknown between the 15^th of March, 2012 and the 15^th day of February 2013 at Zillmere in the State of Queensland [the appellant] unlawfully permitted himself to be indecently dealt with by [the complainant, his daughter] … .”
The factual…

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 MCN

Details

AGLC: R v MCN [2018] QCA 101
Case: [2018] QCA 101
Decision Date: 1 June 2018

CaseChat Overview and Summary

The case of R v MCN involved a conviction by the appellant of two counts of sexual offences against his daughter. The appellant brought an appeal against his conviction, arguing that the trial judge's direction to the jury on the need for corroboration was inadequate and amounted to a miscarriage of justice. The appellant was brought to trial three years after the offences were alleged to have occurred. Both counsel agreed that a Longman direction should be given, but the appellant's counsel submitted on appeal that the direction given appeared to be an amalgamation of a Longman direction and a Robinson direction. The appellant's counsel also submitted that the trial judge did not warn the jury that it would be “dangerous” to convict.

The primary legal issues for the court to decide were whether the trial judge's direction to the jury on the need for corroboration was adequate and whether the failure to warn the jury that it would be “dangerous” to convict amounted to a miscarriage of justice. The court considered the case of Longman, which held that a warning to the jury that it would be dangerous to convict on uncorroborated evidence of sexual assault was required when there was a substantial delay between the offence and the complaint, and where the complainant was a child. The court also considered the case of Robinson, which held that where there is evidence of a particularised nature, the jury must be directed that they must be satisfied of those particulars before they can convict. The court concluded that the trial judge's direction was adequate and did not occasion a miscarriage of justice.

The court found that the trial judge's direction to the jury on the need for corroboration was adequate. The court held that the trial judge was not required to warn the jury that it would be “dangerous” to convict on the basis of the uncorroborated evidence of the complainant. The court found that the trial judge's direction was in accordance with the principles set out in Longman and Robinson, and that the failure to warn the jury that it would be “dangerous” to convict did not occasion a miscarriage of justice. The court held that the jury had been properly directed on the need for corroboration and that the conviction was safe. The appeal was dismissed.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

On 9 May 2016, when the daughter was 13, she was again interviewed by the police. During the course of that interview she gave evidence about all counts.The daughter’s evidence She commenced by saying she had massaged her father’s belly with baby oil and “then eventually I would be massaging his … penis”.[3] She said that it occurred “in the same house with the creek”, which had an electric fence.[4] Her description was:“I used to massage his stomach and then gradually he’d start pulling his pants down lower and lower … until eventually … his … penis was sticking out of his pants … I guess I didn’t understand anything so I … [w]ould just massage that as well. I would … rub his stomach and then … I would um just like rub his penis thinking, I didn’t know. … I would hold it, like wrap my hands around it, I guess, … I didn’t know though. … I would only like hold it for like two seconds and I’d go rub his belly again then rub that, his penis again and [rub] his belly.”[5][3]Appeal Book (AB) 249 line 43.[4]AB 260 line 20.[5]AB 260-261. She explained that her father said she could get the baby oil out of the cupboard and asked her to massage his belly.[6] She also explained that she did not understand if she was meant to be doing that or not. She clarified that as meaning “I had no idea … should I be doing this …”.[7] She described the incident as happening “probably about … 8 o’clock, before … I’d go to bed … and it’d be … on a weekend”.[8] She said that it had happened twice and each time “it was just the same routine”.[9][6]AB 261 line 40.[7]AB 262 line 10.[8]AB 261 line 34.[9]AB 263 line 27. When asked how old she was when the massaging occurred the first time, she said “about … nine, 10, ‘cause … when it happened it all … happened in about the same year.”[10][10]AB 263 line 54. She said that she got the baby oil from the bathroom, in a mirrored cupboard.[11] She also got a towel, which she put underneath the appellant so oil would not drip on the bed.[12] After it was over, she said the appellant would pull his pants up and have a shower, she would wash her hands to remove the oil, and she went to bed, in the appellant’s bed. She said she slept in his bed because she was scared during the night.[13][11]AB 264.[12]AB 264.[13]AB 265. She said that the appellant didn’t speak during those occasions but on the second occasion she made some noises:“No, he didn’t talk at all. Ah, just, well, I didn’t, I would just go, I’d like make noises like “rub, rub, rub”.[14] … I think I was just, I used to just like say what I was doing like “rub”[15], it was just “rub, rub, wheee; rub, rub, wheee”.[16] I used to … do that … As I’d go round, ‘cause I use to pretend like I was, like my fingers were kinda like skateboarding.[17] I don’t really remember.”[18][14]Speaking the word, and using her right hand at this point to demonstrate a circular movement.[15]Using her right hand at this point to demonstrate the movement.[16]Speaking the words.[17]At this point she used her right hand and two fingers to demonstrate a figure skateboarding.[18]AB 265 line 49 to AB 266 line 3.

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 MCN [2018] QCA 101
PARTIES:	R v MCN (appellant)
FILE NO/S:	CA No 49 of 2018 DC No 380 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 1 March 2018 (Sheridan DCJ)
DELIVERED ON:	1 June 2018
DELIVERED AT:	Brisbane
HEARING DATE:	25 May 2018
JUDGES:	Sofronoff P and Morrison JA and Atkinson J
ORDER:	The appeal is dismissed.
CATCHWORDS:	CRIMINAL LAW – EVIDENCE – CORROBORATION – WARNING REQUIRED OR ADVISABLE – WHERE SUBSTANTIAL DELAY IN COMPLAINT: LONGMAN WARNING – where the appellant was convicted of two counts of sexual offences against his daughter – where there was a three year period between when the offences occurred and the appellant was brought to trial – where the matter involved a child complainant – where both counsel agreed that a Longman direction should be given– where counsel for the appellant submitted on appeal that the direction given appeared to be an amalgamation of a Longman direction and a Robinson direction – where the trial judge did not warn the jury that it would be “dangerous” to convict – whether the direction was adequate or occasioned a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – where some formal admissions were made at the trial – where the jury were expressly told the location of the offences and the specific time period in which they occurred – whether the jury were directed that in addition to being satisfied of the elements of the offence they must also be satisfied of these particulars before they could convict Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, cited R v MBX [2014] 1 Qd R 438; [2013] QCA 214, applied R v Tichowitsch [2007] 2 Qd R 462; [2006] QCA 569, cited Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, cited Tully v The Queen (2006) 230 CLR 234; [2006] HCA 56, cited
COUNSEL:	R A East for the appellant T A Fuller QC for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent