R v Mde

Case [2019] QCA 262

SUPREME COURT OF QUEENSLAND

CITATION:

R v MDE [2019] QCA 262

PARTIES:

R
v
MDE
(applicant)

FILE NO/S:

CA No 96 of 2018
DC No 71 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)

ORIGINATING COURT:

District Court at Townsville – Date of Conviction: 15 February 2018 (Lynham DCJ)

DELIVERED ON:

Date of Order: 15 October 2019
Date of Publication of Reasons: 22 November 2019

DELIVERED AT:

Brisbane

HEARING DATE:

15 October 2019

JUDGES:

Sofronoff P and Buss AJA and Davis J

ORDER:

Date of Order: 15 October 2019

The application for extension of time is refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – where the applicant was convicted on 15 February 2018 by jury of 21 counts, namely one count of maintaining a sexual relationship with a child, one count of indecent treatment of a child under 16 with circumstances of aggravation that she was under 12 years of age and in his care, two counts of common assault, 12 counts of indecent treatment of a child under the age of 16 years with a circumstance of aggravation that she was in his care, and five counts of rape – where the complainant in all instances of offending was the applicant’s stepdaughter – where the applicant filed a notice of appeal on 19 April 2018 – where the applicant sought an extension of time within which to appeal those convictions – whether the application for an extension of time should be granted

CRIMINAL LAW – EVIDENCE – IDENTIFICATION EVIDENCE – MODES OF IDENTIFICATION – OTHER VISUAL IDENTIFICATION – where in an interview admissible by s 93A of the Evidence Act 1977, the complainant identified the applicant in a video file depicting one instance of the offending against her – where the complainant could specify characteristics of the applicant’s penis that were significant, namely shaved pubic hair and red pimples – where the complainant’s mother specified the same significant characteristics of the complainant’s penis – where the applicant, at trial, did not object to the admission of that identification evidence – where the applicant contends on appeal that the identification evidence should have been excluded on discretionary grounds – where the applicant submits that the learned trial judge erred by failing to adequately direct the jury with regard to the identification evidence – whether the identification evidence was sufficiently weak or prejudicial to occasion its exclusion from the trial or require a warning to the jury

Criminal Code (Qld), s 229B, s 210, s 335, s 349
Domestic and Violence Family Protection Act 2012 (Qld), s 177
Evidence Act 1977 (Qld), s 93A, s 21AK, s 130

Alexander v The Queen (1981) 145 CLR 395; [1981] HCA 17, cited
Davies & Cody v The King (1937) 57 CLR 170; [1937] HCA 27, cited
Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, cited
Domican v The Queen (1992)…

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Details
AGLC
R v Mde [2019] QCA 262
Case
[2019] QCA 262
Decision Date

CaseChat Overview and Summary

The case of R v Mde involved an appeal by the applicant against his conviction on 21 counts, including maintaining a sexual relationship with a child, indecent treatment of a child, and rape. The applicant filed a notice of appeal on 19 April 2018 and sought an extension of time within which to appeal those convictions. The legal issues before the court were whether the application for an extension of time should be granted and whether the identification evidence was sufficiently weak or prejudicial to occasion its exclusion from the trial or require a warning to the jury. The court had to determine whether the applicant’s contention that the identification evidence should have been excluded on discretionary grounds was valid and if the trial judge erred by failing to adequately direct the jury with regard to the identification evidence.

The court noted that the Christie discretion, which allows for the exclusion of evidence if its probative value is outweighed by its prejudicial effect, was relevant in this case. The court found that the identification evidence was not weak or prejudicial enough to warrant exclusion or a warning to the jury. The court also noted that the applicant did not object to the admission of the identification evidence at trial. The court held that the applicant’s argument that the identification evidence should have been excluded on discretionary grounds was not valid and that the trial judge did not err in failing to adequately direct the jury with regard to the identification evidence.

The court dismissed the application for an extension of time and the applicant’s appeal against conviction was dismissed. The court held that the application for an extension of time was not justified and that the identification evidence was not weak or prejudicial enough to warrant exclusion or a warning to the jury. The court’s decision was based on the law concerning the approach to the exercise of the Christie discretion, which was authoritatively pronounced in R v Hasler; Ex parte Attorney-General (Qld). The court held that exclusion should only occur when the evidence in question is of relatively slight probative value and the prejudicial effect of its admission would be substantial. The court found that the identification evidence in this case did not meet these criteria.

The final orders of the court were that the application for extension of time was refused and the applicant’s appeal against conviction was dismissed. The court held that the identification evidence was not weak or prejudicial enough to warrant exclusion or a warning to the jury and that the trial judge did not err in failing to adequately direct the jury with regard to the identification evidence. The court’s decision was based on the law concerning the approach to the exercise of the Christie discretion and the evidence presented in the case. The court found that the applicant’s argument that the identification evidence should have been excluded on discretionary grounds was not valid and that the trial judge did not err in failing to adequately direct the jury with regard to the identification evidence.

Orders

Orders of the court

Date of Order: 15 October 2019

The application for extension of time is refused.

Background

Background to the litigation

On 15 October 2019, I joined in an order of the court dismissing the application for an extension of time.Background All the counts on the indictment allege offences against the stepdaughter of the applicant. The complainant was aged between 10 to 14 years over the period alleged in count 1 on the indictment, namely that the applicant maintained an unlawful sexual relationship with her. Apart from counts 3, 4 and 17, which allege common assault, all the other counts allege sexual offences committed against the complainant during the period defined by count 1. On 28 April 2014, the complainant told her mother that the applicant had “licked her private part”. On that day, the complainant was taken to police and she participated in an interview which was admissible in proceedings against the applicant pursuant to s 93A of the Evidence Act 1977 (the first s 93A interview). In the first s 93A interview, the complainant told police that over the few months since Christmas 2013, the applicant had been offending against her sexually. The offending which was described was limited to activity which could broadly be described as indecent assaults. There was no mention of photographs being taken by the applicant of the complainant, nor videos being taken, and there was no allegation at that stage of any sexual acts involving penetration. Some months later, in January of 2015, a mobile telephone was located at a local rubbish dump. It contained a number of photographs and video files depicting indecent images of the complainant. Of particular significance was a video file which showed the complainant sucking the erect penis of an adult. The camera must have been positioned behind and above the male as what can be seen is the penis, back and arms of the adult and the face of the complainant who is looking towards the camera. She can clearly be seen placing her mouth over the adult’s penis and then taking the penis in her hand and masturbating him. On 5 February 2015, the complainant was interviewed again (the second s 93A interview). In that interview, she was shown some of the photographs from the mobile telephone but was not shown the video file. She could identify herself in some of the photographs and recalled photographs being taken. She made further disclosure of offences, including three counts of anal penetration and two counts when the applicant inserted his penis into her mouth. All five of those incidents were charged as rape.[7][7]Counts 9, 10, 11, 12 and 20. The face of the male in the video file cannot be seen. What can be seen is that the male has tattoos on his right arm, in what was described in the evidence as a “sleeve” of tattoos. His pubic area is shown and can be seen to be shaved. In the second s 93A interview, the complainant was asked to describe the applicant’s penis. She described it as white and the genital region as hairless with pimples. Investigations showed that the mobile telephone bore a number that was connected to the applicant.

Evidence

Evidence Before The Court

Section 130 of the Evidence Act provides as follows:“130 Rejection of evidence in criminal proceedingsNothing in this Act derogates from the power of the court in a criminal proceeding to exclude evidence if the court is satisfied that it would be unfair to the person charged to admit that evidence.” Section 130 does not create a discretionary basis upon which the court may exclude evidence.[15] The section simply preserves the recognised bases for discretionary exclusion. What is relied upon here is the Christie discretion,[16] namely that a trial judge may exclude evidence where its probative value is outweighed by its prejudicial effect.[15]R v Roughan & Jones (2007) 179 Crim R 389 at [75].[16]R v Christie [1914] AC 545. The Christie discretion is often the basis for the exclusion of identification evidence.[17][17]R v Carusi (1997) 92 A Crim R 52 at 55-56; R v Murphy [1996] 2 Qd R 523 and Pitkin v The Queen (1995) 69 ALJR 612. In Festa v The Queen,[18] McHugh J said:“51But the weakness of relevant evidence is not a ground for its exclusion. It is only when the probative value of evidence is outweighed by its prejudicial effect that the Crown can be deprived of the use of relevant but weak evidence. And evidence is not prejudicial merely because it strengthens the prosecution case. It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task.”[18](2001) 208 CLR 593. The law concerning the approach to the exercise of the Christie discretion was authoritatively pronounced in R v Hasler; Ex parte Attorney-General (Qld)[19] as follows:“It is desirable that I attempt to summarise the conclusions I have reached from reviewing the relevant authorities on this question.(a)The exercise of the discretion is not a simple balancing function in which the judge decides whether the overall effect of the evidence is more prejudicial to the accused than it is beneficial to the Crown case. Sometimes the discretion is elliptically described in headnotes and elsewhere as a ‘discretion to exclude where prejudicial value outweighs probative value’. Such abbreviations should not be permitted to modify or distort the true test, and should be recognised as mere shorthand references to it.(b)Exclusion should occur only when the evidence in question is of relatively slight probative value and the prejudicial effect of its admission would be substantial. Without dissenting from any of the five formulations quoted above, it is apparent that those stated by Barwick CJ and by Stephen and Aickin JJ in Bunning v Cross give proper recognition to these factors and that they may safely be used as concise working statements of the principle.(c)In performing the balancing exercise, the only evidence that should be thrown into the ‘prejudice’ scale is that which shows discreditable conduct other than those facts which directly tend to prove the offence itself. The ‘prejudice’ cannot refer to the damage to the accused’s case through direct proof of the offence. To speak of a ‘balancing’ of prejudicial effect against probative value of such evidence is absurd, because the weight of each will be exactly the same. If prejudice arising from strict proof of the case were to go into the ‘prejudice’ scale, then the additional prejudicial effect would always tip the scales and the evidence would never be admissible.” [20][19][1987] 1 Qd R 239 at 251.[20]Page 251.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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