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R v McNeish

R v McNeish

Case [2019] QCA 191 17 September 2019

Appeal

Breach of Contract

Joinder of Counts and Defendants

Joint Trial

Sexual Offences

Criminal Law

Type to search within this case.

SUPREME COURT OF QUEENSLAND

CITATION:

R v McNeish [2019] QCA 191

PARTIES:

R
v
McNEISH, Zaine Steven
(appellant)

FILE NO/S:

CA No 197 of 2018
DC No 262 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Townsville – Date of Conviction: 22 June 2018 (Lynham DCJ)

DELIVERED ON:

17 September 2019

DELIVERED AT:

Brisbane

HEARING DATE:

4 June 2019

JUDGES:

Sofronoff P and McMurdo JA and Henry J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION – CONTROL OF PROCEEDINGS – SEPARATE TRIALS AND ELECTIONS – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – JOINDER OF COUNTS AND DEFENDANTS – JOINT TRIAL – where the appellant was convicted at trial of 22 counts of sexual offending against children including maintaining sexual relationships, rape and indecent treatment – where the complainants were three young sisters aged between two and 10 during the period of offending – where the appellant lived next door to the sisters and befriended the girls and their family – where the counts concerning the younger two sisters involved the appellant maintaining a sexual relationship with each, committing penetrative acts on each, and at times procuring both to perform penetrative acts on the other – where the counts concerning the eldest sister involved the appellant touching her vagina outside her underpants – where the appellant accepts that the evidence relating to the counts concerning the younger two sisters was cross-admissible – where the appellant applied at first instance for a separate trial of the counts concerning the eldest sister on the ground that the evidence in her case was not admissible in the cases concerning the younger sisters – where the pre-trial hearing judge at first instance refused the application for a separate trial – whether the counts involving the eldest sister formed part of a series of offences of the same or similar character as those involving the younger two sisters – whether there were sufficient similarities between the offences against the eldest sister and those against the younger two sisters as to make them admissible in the proof of the other – whether the pre-trial hearing judge erred in refusing the application for a separate trial of the counts concerning the eldest sister

HML v The Queen (2008) 235 CLR 334; [2008] HCA 16, applied
Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20, applied
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14, cited
Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7, explained
Phillips v The Queen (2006) 225 CLR 303; [2006] HCA 4, distinguished
R v Bauer (2018) 92 ALJR 846; [2018] HCA 40, explained
R v Ford (2009) 201 A Crim R 451; [2009] NSWCCA 306, cited
R v PWD (2010) 205 A Crim R 75; [2010] NSWCCA 209, cited
R v Straffen [1952]…

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 McNeish

Details

AGLC: R v McNeish [2019] QCA 191
Case: [2019] QCA 191
Decision Date: 17 September 2019

CaseChat Overview and Summary

The appellant in this matter was convicted of 22 counts of sexual offences against children, including maintaining sexual relationships, rape, and indecent treatment. The complainants were three young sisters aged between two and 10 during the period of offending. The appellant lived next door to the sisters and had befriended the girls and their family. The appellant accepted that the evidence relating to the counts concerning the younger two sisters was cross-admissible. However, the appellant applied at first instance for a separate trial of the counts concerning the eldest sister on the ground that the evidence in her case was not admissible in the cases concerning the younger sisters. The pre-trial hearing judge refused the application for a separate trial.

The legal issues in this matter centred around whether the counts involving the eldest sister formed part of a series of offences of the same or similar character as those involving the younger two sisters. It was also considered whether there were sufficient similarities between the offences against the eldest sister and those against the younger two sisters as to make them admissible in the proof of the other. The appellant argued that the pre-trial hearing judge erred in refusing the application for a separate trial of the counts concerning the eldest sister.

The court found that the offences against the eldest sister were similar in character to those against the younger two sisters, and that there were sufficient similarities between the offences as to make them admissible in the proof of the other. The court held that the pre-trial hearing judge did not err in refusing the application for a separate trial of the counts concerning the eldest sister. The court dismissed the appeal.

No further orders were made by the court.

Orders

Orders of the court

Appeal dismissed.

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.

Citations

AGLC Citation

R v McNeish [2019] QCA 191

Most Recent Citation

R v WBN [2020] QCA 203

Cases citing this decision · 18 of 18 shown

R v Oqm
[2025] QDCPR 44 Para 4

…austive list of categories set out in the judgment of the majority in R v McNeish (2019) 2 QR 355, [30]-[31]. And see R v LBE [2024] QCA 53, [15(d)]. [24] R v McNeish (2019) 2 QR 355, [29]. [25]As in R v LBE [2024] QCA 53 where the evidence was relied on two bases, that is to say, “one being the coincidence of the…
R v Vo
[2024] QCA 96 Para 5

…e consequence was that there was no basis to order severance of the indictment as sought. [1] Pfennig v The Queen (1995) 182 CLR 461. [2] R v McNeish [2019] QCA 191. [3]This must be taken to be a reference to the evidence of the acts alleged by one complainant which, necessarily, are not the subject of the charge…
R v Lbe
[2024] QCA 53 Para 1

…6) 225 CLR 303, 323-324 [63]. [21] Phillips v The Queen (2006) 225 CLR 303, 323-324 [63]; BBH v The Queen (2012) 245 CLR 499, 546 [155]. See also R v McNeish (2019) 2 QR 355 per Sofronoff P and Henry J at [65]. [22] R v WRC (2002) 130 A Crim R 89 at 102 [27]-[29]. [23]See BBH v The Queen (2012) 245 CLR 499, 546-547 […
R v YF
[2023] QCA 111 Para 7

…ilarity of the “operative features” of the uncharged acts did not necessarily deny the tendency evidence of its relative strength.[66] [64] R v McNeish (2019) 2 QR 355, 367 [42]. [65](2017) 263 CLR 338, 355 [38]. See also R v McNeish (2019) 2 QR 355, 368 [44]. [66] Hughes v The Queen (2017) 263 CLR 338, 355 [37], 355…
R v Trott
[2023] QCA 107 Para 14

…ndency’ or ‘propensity’ evidence). 4.To identify the offender, as in Pfennig itself.” (citations omitted). [41] R v McNeish [2019] QCA 191; (2019) 2 QR 355 [29], which has been applied on multiple occasions including in R v Thomson [2022] QCA 36; (2022) 296 A Crim R 510 [52] - [67]. [42] McNeish [30].…
R v CDA
[2022] QCA 258 Para 19

…mere significant probative value.[34] [32](2006) 225 CLR 303, 320-321 [54]. [33] Phillips v The Queen (2006) 225 CLR 303, 323-324 [63]; R v McNeish [2019] QCA 191 [62]-[66]. [34] R v Bauer (2018) 266 CLR 56, 84 [52].…
R v SDS
[2022] QCA 106 Para 10

…of GDO would be cross-admissible in the way discussed in Pfennig v The Queen [17] and in R v McNeish .[18] [17](1995) 182 CLR 461; [1995] HCA 7. [18][2019] QCA 191.…
R v Thomson
[2022] QCA 36 Para 4

…st COM and the offences against VIC, were recently examined in R v McNeish [20] and R v WBN .[21] From those judgments a number of points emerge. [20][2019] QCA 191. [21](2020) 5 QR 566.…
JEL v The State of Western Australia
[2022] WASCA 32 Para 4

…The Queen [2008] HCA 16; (2008) 235 CLR 334 [156], [273]. [122] R v Leonard [2006] NSWCCA 267; (2006) 67 NSWLR 545 [49] ‑ [53]. [123] R v McNeish [2019] QCA 191; (2019) 2 QR 355 [30]. [124] Respondent's further submissions [27] - [30].…
R v Lawton
[2021] QCA 272

…eish (2019) 2 QR 355; [2019] QCA 191, followed R v SAR [2005] QCA 426, followed R v Wilson [1990] CCA 299, cited COUNSEL: S L Kissick for the appellant/applicant G J Cummings for the respondent SOLICITORS: MacDonald Law for the appellant/applicant Director of Public Prosecutions (Queensland) for the respondent…
R v Smith
[2021] QCA 105

…1996] QCA 41, considered R v McNeish (2019) 2 QR 355; [2019] QCA 191, cited R v Mitchell [2008] 2 Qd R 142; (2007) 174 A Crim R 52; [2007] QCA 267, considered R v Murray [2016] QCA 342, considered R v Trebeck [2018] QCA 183, cited Sutton v The Queen (1984) 152 CLR 528; [1984] HCA 5, cited COUNSEL: D J Walsh for t…
R v Harris
[2021] QCA 96 Para 7

…[18] [16](1995) 182 CLR 461. The trial judge also referred to Phillips v The Queen (2006) 224 ALR 216, R v MAP [2006] QCA 220 and R v McNeish [2019] QCA 191. [17]Reasons [47]. [18]Reasons [53].…
R v Spreadborough
[2020] QCA 291 Para 8

…essible to the appellant for the same reason, the appellant’s position of trust within their family and his role as their occasional babysitter. [1][2019] QCA 191. [2](2017) 263 CLR 338: decided in relation to a statutory regime but that is not material for present purposes.…
R v WBN
[2020] QCA 203 Para 4

…hat is central to the identification of relevance and of probative force.[129] [128] Pfennig at 483. [129] Phillips at [26]; Hoch at 301. See R v McNeish (2019) 2 QR 355 at [30].…
R v TCJ
[2020] QDC 120 Para 1

…nce be the same kind.[138] [138]Ruling of Judge Williamson QC in this matter, 26 February 2020 (Unreported) at page 8 with reference to R v McNeish [2019] QCA 191 at [40].…
R v Mbilizi
[2020] QDCPR 53 Para 1

…basis upon which to understand aspects of the case that the complainant’s and the accused’s actual history might not explain.”: R v McNeish [2019] QCA 191 at 7 [33] (‘ McNiesh ’). The evidence is relevant because, if it is believed, the facts proved by the evidence render the commission of the charged offence mor…
R v Brian Trevor Harris
[2020] QDC 28 Para 1

…innocence of the defendant. [4] Pfennig v The Queen (1995) 182 CLR 461; Phillips v The Queen (2006) 224 ALR 216; R v MAP [2006] QCA 220; R v McNeish [2019] QCA 191.…
R v FVN
[2019] QDCPR 55 Para 1

…e was considered by the High Court in R v Bauer (2018) 359 ALR 359 and by the Court of Appeal in R v Davidson [2019] QCA 120 and again in R v McNeish [2019] QCA 191. [8] Hoch at 295.…

View all 18 citing cases →

Cases cited in this decision · 29 of 29 shown

R v Bauer
[2018] HCA 40 Para 4

…harged acts shows not only that the accused has the particular sexual urges but that he is prepared to satisfy them by action.[17] [17] cf. R v Bauer (2018) 92 ALJR 846 , at [59].…
Hughes v The Queen
[2017] HCA 20 Para 10

…st female children. Otherwise, the acts that constituted the offences ranged from exposure involving no touching to acts of sexual penetration. [27](2017) 263 CLR 338, at [57].…
IMM v The Queen
[2016] HCA 14 Para 3

…After all, the alleged acts were themselves sexual offences. [55]The error in Velkoski identified by the High Court in Hughes . [56](2016) 257 CLR 300. [57] ibid , at [60], although the case was decided under statute and, consequently, the relevant question was whether the evidence had “significant probative value” r…
Velkoski v The Queen
[2014] VSCA 121

…cited Sutton v The Queen (1984) 152 CLR 528; [1984] HCA 5, explained Velkoski v The Queen (2014) 45 VR 680; [2014] VSCA 121, disapproved COUNSEL: J Trevino for the appellant N W Crane for the respondent SOLICITORS: Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the responde…
BBH v The Queen
[2012] HCA 9 Para 7

…approved by Gleeson CJ in HML at 359 [27], and by Crennan and Kiefel JJ in BBH v The Queen (2012) 245 CLR 499 at 546 [155], 547 [157]; [2012] HCA 9 at [155], [157]; see also Cross on Evidence Australian Edition at [21035]. [81]And similarly for the evidence of E and M.…
Leonard v The Queen
[2011] NZCA 583 Para 30

…thers previously. (sometimes called “tendency” or “propensity” evidence) 4.To identify the offender, as in Pfennig itself. [12] Leonard v The Queen (2006) 67 NSWLR 545, at [49] per Hodgson JA, cited with approval by Heydon J in HML v The Queen (2008) 235 CLR 334, at [273]. [13]see for example the description of such a case b…
R v PWD
[2010] NSWCCA 209

…CA 40, explained R v Ford (2009) 201 A Crim R 451; [2009] NSWCCA 306, cited R v PWD (2010) 205 A Crim R 75; [2010] NSWCCA 209, cited R v Straffen [1952] 2 QB 911, cited Sutton v The Queen (1984) 152 CLR 528; [1984] HCA 5, explained Velkoski v The Queen (2014) 45 VR 680; [2014] VSCA 121, disapproved COUNSEL: J Trevin…
R v Ford
[2009] NSWCCA 306

…A 4, distinguished R v Bauer (2018) 92 ALJR 846; [2018] HCA 40, explained R v Ford (2009) 201 A Crim R 451; [2009] NSWCCA 306, cited R v PWD (2010) 205 A Crim R 75; [2010] NSWCCA 209, cited R v Straffen [1952] 2 QB 911, cited Sutton v The Queen (1984) 152 CLR 528; [1984] HCA 5, explained Velkoski v The Queen (2014)…
HML v The Queen
[2008] HCA 16 Para 23

…ich the accused was prepared to act: R v Bauer (2018) 92 ALJR 846 at 860 [49]; [2018] HCA 40 at [49]; HML v The Queen (2008) 235 CLR 334; [2008] HCA 16. [70](1988) 165 CLR 292 at 295-6; [1988] HCA 50.…
R v MAP
[2006] QCA 220 Para 12

…he other counts, as did the evidence of L and M in the proof of the three counts involving E. The evidence was not cross admissible. [82] R v MAP [2006] QCA 220 at [45] per Keane JA.…
Phillips v The Queen
[2006] HCA 4 Para 5

…view of the similar fact evidence which is consistent with innocence.” (Emphasis added, footnotes omitted.) [75](2006) 225 CLR 303 at 323-4 [63]; [2006] HCA 4 at [63].…
R v Ellis
[2003] NSWCCA 319 Para 7

…telling the truth, so that the addition of E’s evidence would dispel a doubt about the counts involving L?[81] [78](2003) 58 NSWLR 700; [2003] NSWCCA 319. [79](2008) 235 CLR 334 at 429 [285]; [2008] HCA 16 at [285]. [80]The reasoning of Hodgson JA was approved by Gleeson CJ in HML at 359 [27], and by Crennan and Kie…
R v WRC
[2002] NSWCCA 210 Para 6

…t is added to the other evidence, it would eliminate any reasonable doubt which might be left by the other evidence.” [76](2002) 130 A Crim R 89; [2002] NSWCCA 210. [77](2002) 130 A Crim R 89 at 102 [29]; [2002] NSWCCA 210 at [29].…
Regina v Ellis; Regina v Carr
[2002] NSWCCA 211 Para 7

…oction, each must be telling the truth, so that the addition of E’s evidence would dispel a doubt about the counts involving L?[81] [78](2003) 58 NSWLR 700; [2003] NSWCCA 319. [79](2008) 235 CLR 334 at 429 [285]; [2008] HCA 16 at [285]. [80]The reasoning of Hodgson JA was approved by Gleeson CJ in HML at 359 [27], and…
Palmer v the Queen
[1998] HCA 2 Para 2

…if it is believed, the facts proved by that evidence render the commission of the charged offence more probable. [15] Palmer v The Queen (1998) 193 CLR 1, at [49] per McHugh J.…
Pfennig v the Queen
[1995] HCA 7 Para 17

…im that day. The river and surrounding land were searched extensively. The search continued for three years. No trace of Michael was ever found. [3](1995) 182 CLR 461.…
Harriman v the Queen
[1989] HCA 50 Para 22

…use the evidence in that way. [68] Boardman v DPP [1975] AC 421 at 456-8 per Lord Cross of Chelsea; Harriman v The Queen (1989) 167 CLR 590 at 600-1; [1989] HCA 50 per Dawson J and Pfennig v The Queen (1995) 182 CLR 461 at 484; [1995] HCA 7 per Mason CJ, Deane and Dawson JJ.…
Hoch v the Queen
[1988] HCA 50 Para 8

…d with approval by Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ in Phillips v The Queen (2006) 225 CLR 303 , at [54]. [25] Hoch v The Queen (1988) 165 CLR 292, at 301 per Brennan and Dawson JJ. [26] Bauer , supra , at [58].…
De Jesus v The Queen
[1986] HCA 65 Para 17

…rials should have been ordered: Hoch v The Queen ;[62] De Jesus v The Queen .[63] [62](1988) 165 CLR 292 at 294; [1988] HCA 50. [63](1986) 61 ALJR 1; [1986] HCA 65.…
Sutton v The Queen
[1984] HCA 5

…m R 75; [2010] NSWCCA 209, cited R v Straffen [1952] 2 QB 911, cited Sutton v The Queen (1984) 152 CLR 528; [1984] HCA 5, explained Velkoski v The Queen (2014) 45 VR 680; [2014] VSCA 121, disapproved COUNSEL: J Trevino for the appellant N W Crane for the respondent SOLICITORS: Legal Aid Queensland for the appel…
Perry v The Queen
[1982] HCA 75 Para 21

…t undermine the presumption of innocence by creating an undue suspicion against an accused. [66] Perry v The Queen (1982) 150 CLR 580 at 585; [1982] HCA 75 per Gibbs CJ. [67](1995) 182 CLR 461 at 512; [1995] HCA 7, citing Dawson v The Queen (1961) 106 CLR 1 at 16; [1961] HCA 74 per Dixon CJ.…
Plomp v The Queen
[1963] HCA 44 Para 3

…of an offender’s lust for a particular child or it may be the result of a lust for children generally. [16]see eg. Plomp v The Queen (1963) 110 CLR 234, at 243 per Dixon CJ.…
Dawson v The Queen
[1961] HCA 74 Para 21

…50 CLR 580 at 585; [1982] HCA 75 per Gibbs CJ. [67](1995) 182 CLR 461 at 512; [1995] HCA 7, citing Dawson v The Queen (1961) 106 CLR 1 at 16; [1961] HCA 74 per Dixon CJ.…
Peacock v The King
[1911] HCA 66 Para 5

…plying the test is whether there is a rational view of the evidence that is consistent with the innocence of the accused. [18] Peacock v The King (1911) 13 CLR 619. [19] supra , at [108].…
R v Nieterink
[1999] SASC 560 Para 30

…334, at [273]. [13]see for example the description of such a case by Gleeson CJ in HML , supra , at [6]; see also R v Nieterink (1999) 76 SASR 56, at [43].…
[1894] AC 57
[1894] AC 57 Para 31

…has been committed and that the accused is the offender. It is not necessary to consider the fourth and fifth categories further in this appeal. [14] [1894] AC 57.…
[1975] AC 421
[1975] AC 421 Para 29

…ictive.[11] [10] Director of Public Prosecutions v P [1991] 2 AC 447, at 460 per Lord Mackay of Clashfern LC. [11]per Lord Morris in R v Boardman [1975] AC 421, at 439.…
[1991] 2 AC 447
[1991] 2 AC 447 Para 29

…erates. Labels and definitive descriptions, while useful, are neither comprehensive nor restrictive.[11] [10] Director of Public Prosecutions v P [1991] 2 AC 447, at 460 per Lord Mackay of Clashfern LC. [11]per Lord Morris in R v Boardman [1975] AC 421, at 439.…
[1952] 2 QB 911
[1952] 2 QB 911 Para 25

…As Slade J had said in R v Straffen ,[4] as long ago as 1952, abnormal propensity can be a means of identification. [4][1952] 2 QB 911, at 916-917.…

Legislation cited in this decision · 6

Evidence (National Uniform Legislation) Act 2011 (NT)
1 mention (from Para 24)
Evidence Act 1977 (Qld)
1 mention (from Para 11)
Evidence Act 1995 (Cth)
1 mention (from Para 11)
Evidence Act 2001 (TAS)
1 mention (from Para 24)
Evidence Act 2008 (Vic)
1 mention (from Para 7)
Evidence Act 2011 (ACT)
1 mention (from Para 24)

CITATION:	R v McNeish [2019] QCA 191
PARTIES:	R v McNEISH, Zaine Steven (appellant)
FILE NO/S:	CA No 197 of 2018 DC No 262 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Townsville – Date of Conviction: 22 June 2018 (Lynham DCJ)
DELIVERED ON:	17 September 2019
DELIVERED AT:	Brisbane
HEARING DATE:	4 June 2019
JUDGES:	Sofronoff P and McMurdo JA and Henry J
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION – CONTROL OF PROCEEDINGS – SEPARATE TRIALS AND ELECTIONS – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – JOINDER OF COUNTS AND DEFENDANTS – JOINT TRIAL – where the appellant was convicted at trial of 22 counts of sexual offending against children including maintaining sexual relationships, rape and indecent treatment – where the complainants were three young sisters aged between two and 10 during the period of offending – where the appellant lived next door to the sisters and befriended the girls and their family – where the counts concerning the younger two sisters involved the appellant maintaining a sexual relationship with each, committing penetrative acts on each, and at times procuring both to perform penetrative acts on the other – where the counts concerning the eldest sister involved the appellant touching her vagina outside her underpants – where the appellant accepts that the evidence relating to the counts concerning the younger two sisters was cross-admissible – where the appellant applied at first instance for a separate trial of the counts concerning the eldest sister on the ground that the evidence in her case was not admissible in the cases concerning the younger sisters – where the pre-trial hearing judge at first instance refused the application for a separate trial – whether the counts involving the eldest sister formed part of a series of offences of the same or similar character as those involving the younger two sisters – whether there were sufficient similarities between the offences against the eldest sister and those against the younger two sisters as to make them admissible in the proof of the other – whether the pre-trial hearing judge erred in refusing the application for a separate trial of the counts concerning the eldest sister HML v The Queen (2008) 235 CLR 334; [2008] HCA 16, applied Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20, applied IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14, cited Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7, explained Phillips v The Queen (2006) 225 CLR 303; [2006] HCA 4, distinguished R v Bauer (2018) 92 ALJR 846; [2018] HCA 40, explained R v Ford (2009) 201 A Crim R 451; [2009] NSWCCA 306, cited R v PWD (2010) 205 A Crim R 75; [2010] NSWCCA 209, cited R v Straffen [1952]…