R v Mcu - [2018] QCA 194

SUPREME COURT OF QUEENSLAND

CITATION:

R v MCU [2018] QCA 194

PARTIES:

R
v
MCU
(appellant)

FILE NO/S:

CA No 67 of 2017
DC No 63 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Townsville – Date of Conviction: 16 March 2017 (Smith DCJ)

DELIVERED ON:

21 August 2018

DELIVERED AT:

Brisbane

HEARING DATE:

1 December 2017

JUDGES:

Fraser and Morrison JJA and Henry J

ORDER:

Dismiss the appeal.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where a jury found the appellant not guilty of two offences and guilty of two offences of indecent treatment of a child under 16 years with the circumstances of aggravation that the child was under 12 years and was a lineal descendant – where the offending was said to have occurred over two weekends – where the complainant’s evidence about the timing and order of the counts was inconsistent – where the appellant argued that the acquittals on counts 2 and 3 indicated that the jury had a doubt about the complainant’s reliability – whether the differing verdicts of the jury could be reconciled – whether the guilty verdict was impermissibly inconsistent and unreasonable

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE AND INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant argued that there were significant inconsistencies in the complainant’s evidence, and between the complainant’s evidence and the preliminary complaint evidence – where the complainant’s evidence about the timing and order of the counts was inconsistent – where the appellant argued that the circumstances leading to the acquittals to counts 2 and 3 necessarily created a reasonable doubt also on counts 1 and 4 – whether the inconsistencies in the evidence made the guilty verdicts on counts 1 and 4 unreasonable

MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, applied
Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75, cited
R v Clapham[2017] QCA 99, applied

COUNSEL:

M Hibble for the appellant
J A Wooldridge for the respondent

SOLICITORS:

Ruddy, Tomlins & Baxter for the appellant
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: After a trial in the District Court, a jury found the appellant not guilty of two offences and guilty of two offences of indecent treatment of a child under 16 years, with the circumstances of aggravation that the child was under 12 years and was a lineal descendant. The particulars of each count on the indictment together with the verdicts of the jury are as follows:

Count Particulars Verdict

1 The defendant placed the complainant’s hand on his penis whilst on the bed.
(The incident when the accused showed the complainant “his ticklish spot”) Guilty

2 The defendant touched the complainant’s vagina area on the inside of her clothing whilst on the ride on mower.
(The ride on mower incident) Not guilty

3 The defendant touched the…

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 Mcu

Details

AGLC: R v Mcu [2018] QCA 194
Case: [2018] QCA 194
Decision Date: 21 August 2018

CaseChat Overview and Summary

In the case of R v Mcu, the appellant was appealing against his convictions and sentences for two counts of indecent treatment of a child under 16 years, with the circumstances of aggravation that the child was under 12 years and was a lineal descendant. The appellant was acquitted on two other counts of indecent treatment of a child under 16 years. The appeal was based on the argument that the jury's verdicts were inconsistent and unreasonable, given the inconsistencies in the complainant's evidence about the timing and order of the events. The appellant also argued that the acquittals on counts 2 and 3 indicated that the jury had a doubt about the complainant's reliability, which should have led to a reasonable doubt about the other counts as well.

The court was required to determine whether the differing verdicts of the jury could be reconciled and whether the guilty verdicts were impermissibly inconsistent and unreasonable, having regard to the evidence. The court examined the inconsistencies in the complainant's evidence, including her statements about the timing and order of the events and the days on which they occurred. The court also considered the preliminary complaint evidence and the appellant's argument that there were significant inconsistencies in the complainant's evidence. The court had to decide whether the inconsistencies in the evidence made the guilty verdicts unreasonable.

The court found that the inconsistencies in the complainant's evidence did not render the verdicts unreasonable or inconsistent. The court held that the jury was entitled to believe the complainant's evidence as to the facts of the offending on counts 1 and 4, even though there were inconsistencies in the details. The court found that the acquittals on counts 2 and 3 did not necessarily create a reasonable doubt about counts 1 and 4. The court also held that the guilty verdicts were supported by the evidence and were not unreasonable. The court dismissed the appeal and affirmed the convictions and sentences.

The final orders of the court were to dismiss the appeal and affirm the convictions and sentences for the two counts of indecent treatment of a child under 16 years, with the circumstances of aggravation. The acquittals on counts 2 and 3 were upheld.

Orders

Orders of the court

Dismiss the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Subsequently the complainant referred to walking into the appellant’s room and her sister being there but not knowing anything about it because she was “twisting and turning and all that”. The complainant then referred to not remembering anything but just remembering that she lay down and the appellant asked her to do it and she didn’t want to. The appellant told her that it was “his ticklish spot” and “don’t tell anyone but I told mum and then mum didn’t feel ok with that”. The complainant explained that the appellant put her hand “On the same part where he was tickling me, private”; her subsequent description made it plain that this was the appellant’s penis. In response to further questioning, the complainant said that the appellant “only just let me touch his shorts and I didn’t want to so I just moved my hand away”.The complainant’s other evidence about the order of the events The complainant made various other statements in which she sought to identify the day or weekend upon which the appellant engaged in the alleged conduct. After answering questions in the police interview about counts 2 and 3, she said that the shed time was “last weekend” (apparently the second weekend) and that nothing else happened on that weekend. They had spent two weekends at the appellant’s house and the “shed time” was “The other day, not … umm Saturday”; Saturday was the ride on (count 2) and then the bedroom was Sunday (in context, apparently a reference to count 4 but it might also encompass count 1). The complainant also said that she went to the appellant’s house on both days last weekend (apparently the second weekend). When asked in the police interview to identify the order in which the incidents occurred from the start of the weekend to the end, the complainant referred to the start being the ride on (count 2), and then the shed (count 3), and then the next day it was the bedroom (again apparently referring to count 4, although it might also have encompassed count 1). The complainant also said that the ride on was on Saturday and then the bedroom was on Sunday. In the context of questions about count 1 in the police interview, when asked to tell more about when that happened the complainant said that it was “not last weekend the other weekend”. She agreed that it was not the same weekend as the ride on time and the shed time. The complainant said that it was the weekend before that (which would place count 1 on the first weekend). She did not answer a question about what day it was. The complainant said that it was just her and her sister, not her cousin who were at the appellant’s house with her at the time. The complainant’s grandmother was outside gardening and the appellant was in his room “again”. In the complainant’s pre-recorded evidence, defence counsel put to the complainant that she and her sister went to the appellant’s house on the weekend before she spoke to the police officer, but they went there only on the Saturday. The complainant responded that, “I didn’t really know, because I couldn’t remember from – because I forgot all about it … couldn’t really remember it. So I got mixed up with the day.” The complainant also said in cross-examination that: the appellant getting her to tickle him (a reference to count 1) was on the same day that he did it to her (count 4); the first tickle occurred on the ride on lawnmower (count 2), the second tickle happened in the shed (count 3), and the tickle on the bed (count 1) happened on the next day; it was on the Sunday that the appellant got her to tickle him (count 1); that was after the appellant tickled her on the bed (count 4); the appellant tickled her on the bed (count 4) when Peppa Pig was on; and when the appellant asked her to touch his private (count 1), the complainant could not remember whether Peppa Pig was on but the TV was on and she wasn’t paying any attention to it.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	R v MCU [2018] QCA 194
PARTIES:	R v MCU (appellant)
FILE NO/S:	CA No 67 of 2017 DC No 63 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Townsville – Date of Conviction: 16 March 2017 (Smith DCJ)
DELIVERED ON:	21 August 2018
DELIVERED AT:	Brisbane
HEARING DATE:	1 December 2017
JUDGES:	Fraser and Morrison JJA and Henry J
ORDER:	Dismiss the appeal.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where a jury found the appellant not guilty of two offences and guilty of two offences of indecent treatment of a child under 16 years with the circumstances of aggravation that the child was under 12 years and was a lineal descendant – where the offending was said to have occurred over two weekends – where the complainant’s evidence about the timing and order of the counts was inconsistent – where the appellant argued that the acquittals on counts 2 and 3 indicated that the jury had a doubt about the complainant’s reliability – whether the differing verdicts of the jury could be reconciled – whether the guilty verdict was impermissibly inconsistent and unreasonable CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE AND INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant argued that there were significant inconsistencies in the complainant’s evidence, and between the complainant’s evidence and the preliminary complaint evidence – where the complainant’s evidence about the timing and order of the counts was inconsistent – where the appellant argued that the circumstances leading to the acquittals to counts 2 and 3 necessarily created a reasonable doubt also on counts 1 and 4 – whether the inconsistencies in the evidence made the guilty verdicts on counts 1 and 4 unreasonable MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, applied Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75, cited R v Clapham[2017] QCA 99, applied
COUNSEL:	M Hibble for the appellant J A Wooldridge for the respondent
SOLICITORS:	Ruddy, Tomlins & Baxter for the appellant Director of Public Prosecutions (Queensland) for the respondent

Count	Particulars	Verdict
1	The defendant placed the complainant’s hand on his penis whilst on the bed. (The incident when the accused showed the complainant “his ticklish spot”)	Guilty
2	The defendant touched the complainant’s vagina area on the inside of her clothing whilst on the ride on mower. (The ride on mower incident)	Not guilty
3	The defendant touched the…