CA No 59 of 2017 CA No 199 of 2016 DC No 2267 of 2016 SC No 560 of 2016 SC No 562 of 2016 SC No 757 of 2015
DIVISION:
Court of Appeal
PROCEEDINGS:
Appeal against Conviction & Sentence Sentence Application
ORIGINATING COURTS:
District Court at Brisbane – Date of Conviction: 16 March 2017; Date of Sentence 17 March 2017 (Rackemann DCJ) Supreme Court at Brisbane – Date of Conviction: 23 March 2016; Date of Sentence: 1 July 2016 (Boddice J)
DELIVERED ON:
10 August 2018
DELIVERED AT:
Brisbane
HEARING DATE:
22 February 2018
JUDGES:
Sofronoff P and Morrison and Philippides JJA
ORDERS:
1. The appeal against conviction is dismissed.
2. The applications for leave to appeal against sentence are refused.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF PROSECUTOR – where the appellant/applicant was charged with multiple sexual offences against multiple members of his family – where after trial he was convicted on seven counts and acquitted on two – where during the course of the Prosecutor’s closing address reference was made three times to the appellant/applicant having admitted to being a paedophile – where, in the absence of the jury, the appellant/applicant’s counsel raised with the learned primary judge his concern that the use of the word “paedophile” would “powerfully resonate with the jury” – where a formal application was made to discharge the jury – where that application was refused by the learned primary judge on the basis that any prejudice could be remedied by clarification from the prosecutor following a direction from the learned trial judge – where following such a direction, the prosecutor made a retraction – whether the learned primary judge erred and a miscarriage of justice occurred
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – where the appellant/applicant was convicted of counts of indecent treatment against his biological son and daughter while they were between the ages of six and 14 years – where at the time of the trial the complainants were 50 years old and 48 years old respectively – where the appellant/applicant submitted that a significant number of inconsistencies, contradictions, improbabilities and impossibilities were evident in the witnesses testimony and as such the convictions were unreasonable – where the appellant/applicant participated in an interview with police where he made admissions – where the various inconsistencies were the object of addresses on both sides – whether the verdicts were unreasonable or insupportable having regard to the evidence
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant/applicant was acquitted on count 8 and count 10 but found guilty on count 9 – where the appellant/applicant advanced the contention that this was inconsistent – where these counts were alleged to have…
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.
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Details
AGLC
R v MCT [2018] QCA 189
Case
[2018] QCA 189
Decision Date
CaseChat Overview and Summary
In the matter of R v MCT, the appellant was convicted on seven counts of sexual offences against multiple members of his family, including his biological son, daughter, and adopted daughter. The appellant appealed against his convictions and sentence. The central legal issues that the court had to address included whether the trial judge erred in allowing the prosecutor to refer to the appellant as a "paedophile," whether the convictions were unreasonable or insupportable in light of the evidence, and whether the sentences imposed were manifestly excessive.
The court found that the trial judge did not err in allowing the prosecutor to use the term "paedophile," as any prejudice could be remedied by the prosecutor's subsequent retraction. The court also held that the convictions were not unreasonable or insupportable, as the jury was entitled to believe the complainants' evidence despite the inconsistencies and contradictions raised by the appellant. Regarding the sentences, the court determined that they were not manifestly excessive, as they took into account the appellant's cooperation with authorities, history of childhood sexual abuse, and the need to protect the community.
In conclusion, the appeal against the convictions was dismissed, and the applications for leave to appeal against the sentences were refused. The court upheld the trial judge's decision and the sentences imposed, finding them to be just and appropriate in the circumstances.
Orders
Orders of the court
1. The appeal against conviction is dismissed.
2. The applications for leave to appeal against sentence are refused.
Background
Background to the litigation
In these reasons I intend to deal with the appeal against convictions in CA No. 59 of 2017 first. Then I will deal with the two applications for leave to appeal against sentence in sequence, first that in CA No. 199 of 2016 as they were first in time, then those on CA No. 59 of 2017. The applications for leave to appeal against sentence need to be considered together because, as will become clearer, the sentences in CA No. 59 of 2017 were fashioned to take into account the other sentences.Some background The appellant married his first wife when he was young. Together they had a son and a daughter. They separated in about 1990. The two children lived with the first wife after the separation, though they visited the appellant from time to time. Later the appellant married his second wife and they lived in Thailand. There they adopted a three year old girl. They moved back to Australia in about 2012. The appellant’s daughter had meanwhile married and had a son. From time to time the appellant and his second wife looked after the appellant’s grandson. The offences committed by the appellant against his own son and daughter commenced when they were quite young, about five or six years old. Those offences were earlier in time than those committed by the appellant against his adopted daughter, grandson and second wife. The appellant’s offending involved a number of his family members. To assist in following the reasons below they are:[6](a)his first wife, FWJ;(b)his daughter, DAU;(c)his son, MAL;(d)his second wife, SWS;(e)his grandson, MGA; and(f)his adopted daughter, ADL.[6]Other witnesses to be referred to are DAU’s husband, a preliminary complaint witness, LMR, and an in-law, BGW.Appeal against convictions in CA No. 59 of 2017 As will become apparent there were voluminous submissions from the appellant. Much of them were not properly focussed and raised matters that revealed a fundamental misunderstanding about criminal trial processes. Much of them overlapped the two proceedings. Dealing with them has therefore been made more difficult than it needed to be. In the end not all points raised by the appellant need be considered; if they are not it is because they do not rise above those dealt with in these reasons.Schedule of offences in CA No. 59 of 2017 The offences against the appellant’s son MAL and daughter DAU, the verdict in each, and the sentence imposed on each are set out below in the following table: This ground concerned comments made during the course of the Prosecutor’s closing address in relation to the appellant. At three points in his address the Prosecutor referred to the appellant as having admitted to being a paedophile. The three comments were as follows:(a)“Now, here we have a man who admits to being a paedophile. He tells you about his uncontrollable urges that he has.”[7](b)“Now, what else do you have to support [DAU]? Well, of course there’s [the appellant’s] statement that he’s a paedophile to the police, that he maintained a sexual relationship with his daughter for almost a decade …”;[8] and(c)“We also know that he has confessed to being a paedophile, not interested in 30 year old women, only children, he has got these uncontrollable urges that he has got no power over, no choice against he says.”[9][7]Address p 3, line 4.[8]Address p 10, line 27-29.[9]Address p 14, line 13-16.
Evidence
Evidence Before The Court
At the start of the trial the appellant entered pleas of guilty to counts 6 and 7, each of which was a count of indecent treatment of DAU who was then under 14 years old.DAU’s evidence in respect of count 1 (rape) Her detailed evidence followed a general statement that the appellant would get in the bath with her, make her wash him and wash his penis, and he would touch her vagina.[41] She then said this as to the circumstance of Count 1:“And I also remember at that house where he first penetrated me. It was just before my aunty’s wedding, because I was flower girl for her wedding, so I remember the time pretty well. He asked me to come into his bedroom after my mum had gone out for the night; she went to Weight Watchers’ meetings at night. And he asked me to climb into bed with him and give him a cuddle, and I had a nighty on with pants underneath, and he took the pants off and climbed on top of me, and I remember I didn’t really understand what he was doing, but he stuck his penis inside of me, and I remember screaming a lot, and I remember it really hurt, and it felt like it was burning, and I screamed a lot and was crying and told him to stop, but he did it two more times, and I was still screaming, and he finally stopped, and he told me to go back to the bedroom, and I shared a bedroom with my brother at that time, and he told me to tell my brother … that I was crying because he’d got a splinter out of my finger. I don’t remember much more at that house. I know he often touched me there, but I don’t remember anything else more specific.”[42][41]AB 36 lines 18-20.[42]AB 36 lines 20-34. She added that the appellant told her not to tell anybody and if she did she would “get put in a home”.[43] She gave general evidence of the occasions upon which she said they would be in the bath together. This occurred between the ages of four and six and would involve each of them being naked in the bath. She recalled that his penis would get hard when she touched him.[43]AB 36 line 44. Her evidence was that one of the reasons the events just before the wedding remained in her mind was because she was a flower girl and had her ears pierced for the event. She recalled her father chasing her around the house whilst playing, and she ran through a lace curtain and tore an earring. She said she could remember yelling and screaming at him and saying it was his fault.[44][44]AB 37 lines 27-37. She gave evidence that when she was in school in about grades six and seven she told a friend, LMR, about having been raped and molested. She could not recall the conversation but remembered telling LMR “because of an incident that happened at school”.[45][45]AB 48 lines 30-43. She also recalled telling FWJ when she was sixteen and had fallen pregnant. She could not recall specifically what she said to FWJ, except that the appellant had abused her and she did not want him to touch any child that she had.[46] She also told her husband that the appellant had made her masturbate him, perform oral sex, that he had tried to rape her, and he had penetrated her.[47][46]AB 48-49.[47]AB 49-50.