R v McPartland - [2017] QCA 35

SUPREME COURT OF QUEENSLAND

CITATION:

R v McPartland [2017] QCA 35

PARTIES:

R
v
McPARTLAND, Brian Michael
(appellant)

FILE NO/S:

CA No 225 of 2016
DC No 257 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Ipswich – Date of Conviction: 25 July 2016

DELIVERED ON:

17 March 2017

DELIVERED AT:

Brisbane

HEARING DATE:

30 November 2016

JUDGES:

Margaret McMurdo P and Morrison JA and Ann Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The appeal against conviction is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted by majority verdict of one count of rape as a domestic violence offence – where the appellant contends that the guilty verdict is “unsafe and unsatisfactory” and cannot be supported having regard to the evidence – whether a verdict of guilty was reasonably open to the jury on the whole of the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where the appellant was convicted by majority verdict of one count of rape as a domestic violence offence – where the evidence at trial made clear to the jury that the appellant had been in prison for a lengthy period prior to the commission of the alleged offence – where the appellant contends that a miscarriage of justice occurred when the trial judge wrongly admitted evidence of his prior imprisonment and because of the failure of defence counsel at trial to object to it – where the judge directed the jury to ignore the fact that the appellant had been in prison – where the appellant contends that no direction was capable of curing the extraordinary prejudice created by that evidence – where the appellant contends there was no explicable forensic reason for defence counsel’s decision not to object to that evidence – whether there is reason to consider the jury did not follow the directions of the trial judge – whether defence counsel’s decision was objectively rational – whether a substantial miscarriage of justice has occurred

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

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
Nudd v The Queen (2006) 80 ALJR 614; (2006) 225 ALR 161; [2006] HCA 9, cited
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, cited

COUNSEL:

S R Lewis 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

MARGARET McMURDO P: On 25 July 2016 after a four-day trial the appellant was convicted by majority verdict of raping the complainant on 28 October 2013, the offence being a domestic violence offence. He has appealed…

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 McPartland

Details

AGLC: R v McPartland [2017] QCA 35
Case: [2017] QCA 35
Decision Date: 17 March 2017

CaseChat Overview and Summary

In the case of R v McPartland, the appellant was convicted by majority verdict of one count of rape as a domestic violence offence. The appellant appealed against his conviction, arguing that the verdict was “unsafe and unsatisfactory” and could not be supported by the evidence. Additionally, the appellant argued that the admission of evidence regarding his prior imprisonment and the failure of defence counsel to object constituted a miscarriage of justice.

The court was required to determine whether the guilty verdict was reasonably open to the jury on the whole of the evidence. The court also had to consider whether the admission of evidence about the appellant’s prior imprisonment and the failure of defence counsel to object resulted in a substantial miscarriage of justice.

In assessing the evidence, the court considered the arguments made by the appellant, including the claim that the verdict was unreasonable and the contention that the admission of evidence regarding the appellant’s prior imprisonment and the failure of defence counsel to object caused a miscarriage of justice. The court found that the evidence presented at trial was sufficient to support the jury's verdict that the appellant was guilty beyond reasonable doubt. The court also concluded that any potential prejudice from the admission of evidence about the appellant’s prior imprisonment was adequately addressed by the trial judge’s direction to the jury to ignore it. Furthermore, the court found that the decision of defence counsel not to object to the evidence was objectively rational and did not amount to a substantial miscarriage of justice.

The appeal against conviction is dismissed.

Orders

Orders of the court

The appeal against conviction is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Consideration of the first ground of appeal requires this Court to independently assess the whole of the evidence at trial to determine whether it was open to the jury to conclude beyond reasonable doubt that the appellant was guilty.[1] It is sensible to first consider the second and third grounds of appeal as their determination will set the parameters for consideration of ground one. All grounds require an understanding of the evidence and other events at trial.The relevant evidence and events at trial[1]M v The Queen (1994) 181 CLR 487, 493 – 495; SKA v The Queen (2011) 243 CLR 400, 405 [12].The complainant’s evidence Before the complainant gave evidence, defence counsel told the judge he would be cross-examining her about transcripts of her phone calls with the appellant when he was in prison. He submitted this would reveal the nature of their relationship and suggest a reason for her to make a false complaint.[2][2]Transcript of Prerecorded Evidence, T1-7 – T1-8, AB 14 – 15. The complainant gave her evidence remotely and prior to the trial as a special witness under s 21AK Evidence Act 1977 (Qld) on 20 and 21 June 2016. She said she first met the appellant in 2001 as she was friendly with his niece. They had sexual intercourse over, she thought, three nights. She did not see him again until 2003, at the funeral of her uncle-in-law who was the appellant’s half-brother. Two or three months later they commenced a romantic relationship, contacting each other by phone, letters or weekly visits, but there was no sexual aspect to it. In October 2012 he came to live with her in Laidley.[3] By this time their relationship involved daily sexual intercourse, “always on his terms.”[4] Sometimes she would wake up and find him “inside” her. Sometimes he would fall asleep during sex and she would try to get him to stop but he would not. Sometimes she would wake up with his finger inside her vagina or that he had parted her “bum cheeks” and was masturbating. These incidents occurred between January and June 2013, two or three times a week. He would say he was “about to come” and she had to just lie there not moving, frozen. They also had consensual sex throughout that period but he was not able to reach orgasm. She had sleeping issues and was taking his Panadeine Forte. She did not consent to penetration when she was asleep. She told him she did not want him to do these things while she was asleep because she had been sexually abused as a child and this triggered memories. He would just laugh and say “I can fuck you anytime I want. You’re my woman.”[5][3]Above, T1-14 – T1-15, AB 21 – 22.[4]Above, T1-16, l 29 – l 30, AB 23.[5]Above, T1-16 – T1-18, AB 23 – 25. In June 2013 they had an argument at the Laidley Hotel about her belief that he had been unfaithful with another woman. The previous Friday he had said that he was madly in love with the complainant and wanted to marry her; he was just going through a rough patch after smashing the car, which was registered in her name, and he was feeling pressured and everything was getting on top of him. She accepted his reassurance that he did not have another girlfriend, even though he said he had had sex with another woman. She was willing to forgive him. When she saw him at the pub laughing with the woman with whom he was having the affair, she walked up and punched him. There was a warrant out for his arrest because he had broken his parole and he was arrested at the end of June 2013. He was then in custody until early October 2013. She visited him every week, sent letters, and phoned him daily. Upon his release in October 2013 he came to live with her again.[6][6]Above, T1-19 – T1-21, AB 26 – 28.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v McPartland [2017] QCA 35
PARTIES:	R v McPARTLAND, Brian Michael (appellant)
FILE NO/S:	CA No 225 of 2016 DC No 257 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Ipswich – Date of Conviction: 25 July 2016
DELIVERED ON:	17 March 2017
DELIVERED AT:	Brisbane
HEARING DATE:	30 November 2016
JUDGES:	Margaret McMurdo P and Morrison JA and Ann Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The appeal against conviction is dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted by majority verdict of one count of rape as a domestic violence offence – where the appellant contends that the guilty verdict is “unsafe and unsatisfactory” and cannot be supported having regard to the evidence – whether a verdict of guilty was reasonably open to the jury on the whole of the evidence CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where the appellant was convicted by majority verdict of one count of rape as a domestic violence offence – where the evidence at trial made clear to the jury that the appellant had been in prison for a lengthy period prior to the commission of the alleged offence – where the appellant contends that a miscarriage of justice occurred when the trial judge wrongly admitted evidence of his prior imprisonment and because of the failure of defence counsel at trial to object to it – where the judge directed the jury to ignore the fact that the appellant had been in prison – where the appellant contends that no direction was capable of curing the extraordinary prejudice created by that evidence – where the appellant contends there was no explicable forensic reason for defence counsel’s decision not to object to that evidence – whether there is reason to consider the jury did not follow the directions of the trial judge – whether defence counsel’s decision was objectively rational – whether a substantial miscarriage of justice has occurred Criminal Code (Qld), s 668E(1) M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited Nudd v The Queen (2006) 80 ALJR 614; (2006) 225 ALR 161; [2006] HCA 9, cited SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, cited
COUNSEL:	S R Lewis 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