R v Mdi - [2020] QCA 244

SUPREME COURT OF QUEENSLAND

CITATION:

R v MDI [2020] QCA 244

PARTIES:

R
v
MDI
(appellant)

FILE NO/S:

CA No 190 of 2019
DC No 122 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Maroochydore – Date of Conviction: 1 July 2019 (Long SC DCJ)

DELIVERED ON:

10 November 2020

DELIVERED AT:

Brisbane

HEARING DATE:

5 June 2020

JUDGES:

Fraser and McMurdo JJA and Bradley J

ORDER:

The appeal against the convictions on counts 11 and 12 on the indictment be dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of two counts of indecent treatment of children under 16 years who were under his care, by exposing them to an indecent act by another person – where the appellant submits that the trial judge erred in not providing a direction in all respects which complied with Longman v The Queen (1989) 168 CLR 79 – whether a miscarriage of justice occurred

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant submits that there was a miscarriage of justice because relevant evidence was not led at the trial – where the evidence was to the effect that the family lived at the house, where this incident was alleged to have occurred, for only about five or six weeks, from which it is said that it was unlikely that the incident occurred – whether a miscarriage of justice occurred

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant submits that the verdicts were unreasonable, or cannot be supported having regard to the evidence, because of various inconsistencies in the evidence of witnesses – whether the verdicts were unreasonable

Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26, cited
Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, considered
Mallard v The Queen (2005) 224 CLR 125; [2005] HCA 68; cited
Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35, cited

COUNSEL:

K M Hillard with A J Cousen for the appellant
S L Dennis for the respondent

SOLICITORS:

Brisbane Criminal Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: I agree with the reasons for judgment of McMurdo JA and the order proposed by his Honour.
McMURDO JA: After a trial by a jury in the District Court, the appellant was convicted of two counts of indecent treatment of children under 16 years who were under his care, by exposing them to an indecent act by another person. The children were his son (R) and his partner’s daughter (D). R was his son from a previous marriage.
The offences were alleged to have occurred…

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 Mdi

Details

AGLC: R v Mdi [2020] QCA 244
Case: [2020] QCA 244
Decision Date: 10 November 2020

CaseChat Overview and Summary

The case of R v Mdi involved an appeal against the conviction of the appellant, who was found guilty of two counts of indecent treatment of children under 16 years old. The children were under the care of the appellant and were exposed to an indecent act by another person. The appellant argued that the trial judge erred in not providing a direction in accordance with Longman v The Queen (1989) 168 CLR 79 and that a miscarriage of justice occurred due to the omission of relevant evidence and inconsistencies in the evidence provided by the witnesses. The court was required to determine whether the particular circumstances amounted to a miscarriage of justice and whether the verdicts were unreasonable or insupportable having regard to the evidence.

The court considered the appellant's arguments and found that the trial judge's directions were sufficient and in compliance with Longman. Furthermore, the court found that the absence of certain evidence did not amount to a miscarriage of justice. The court also assessed the inconsistencies in the evidence provided by the witnesses and concluded that the verdicts were not unreasonable or insupportable.

Based on the court's reasoning, the appeal against the convictions on counts 11 and 12 on the indictment was dismissed. The court found that the trial judge's directions were adequate, the absence of certain evidence did not amount to a miscarriage of justice, and the verdicts were not unreasonable or insupportable having regard to the evidence. Consequently, the convictions were upheld.

Orders

Orders of the court

The appeal against the convictions on counts 11 and 12 on the indictment be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In cross-examination, she rejected the suggestion that there was no occasion when the appellant made her and R watch any sexual activity between her mother and a client. She also rejected the suggestion that there was an occasion when the appellant had caught R looking at such an act, and had yelled at him for doing so.The appellant’s evidence In examination in chief, the appellant gave this evidence:“All right. Were you aware of what type of massaging was being offered by [M] at the time it was occurring?---I thought it was raunchy but that’s all.All right. And when you say raunchy, what do you mean by that?---The ads she was putting out were raunchy ads.All right. Now, at a point, did you discover what was occurring in the massage room?---Yes.What – what did you discover?---I saw my son peeping through the window and I looked over and saw what he was looking at and I peered in and I saw what he saw. I got stuck into him verbally. And that was the end of that.All right. Well, what did – did you see what he was observing?---Yes.What did you see?---I saw a bloke laying on the massage bed and he was being pulled off.All right. And who was pulling him off?---[M].All right. As a result of seeing that, did you have any conversation with anyone?---Yes.Who did you speak to?---I spoke to [R] first and I told – that was the end of the massage.Yeah. All right. Well, what did you say to [R]?---I can’t remember. I was pretty angry but I yelled at him and probably called him a few choice names.All right. Did you speak to anyone else about it? You said you spoke to [R] and you said that was the end of the massage. How did the - - -?---I spoke to - - -- - - massage end?---Spoke to [M] and that was – said that stopped.” In cross-examination there was this evidence:“Right. Now, then, if we go to this occasion when you saw [R] peeking?---Mmm.And you yelled at him. And why did you yell at him?---Because he’s – he was doing a little perverted thing looking in there and it was wrong.Okay. And did you yell at him there and then?---I believe so, yeah. I pulled him aside and yelled at him.Right. And did you go in and break up what was happening inside?---From what I could see, it was just about finished. They were sort of - - -Did you go in and break up what was going on inside?---No, it was already – it was already done.Did you tell the man to leave?---I didn’t have to. He was basically leaving.But surely you would have confronted him, so he wouldn’t come back to your family home and do those sort of things?---I felt at the time that it would have caused more trouble if I got into a fight with the bloke or something happened in there with the children and that. I was the only person there. I just – I made a judgment call and I stand by it.All right. So the reality is that you didn’t yell at [R] for that at all, did you?---Yes, I did.You didn’t confront the man about that at all because you actually showed [R] what was happening?---No, I didn’t confront the man because I felt it was the appropriate thing to do at the time.And in fact you showed [R] and [D] what was happening at that time, didn’t you?---No. I don’t remember [D] actually being in that instance. It was just [R].What I’m putting to you is that [D] was there, as was [R], and you’d led them to the point, so that they could see what was happening in the room?---No, I disagree with that absolutely and totally.You never did yell at [R]?---I did.”Unreasonable verdicts

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v MDI [2020] QCA 244
PARTIES:	R v MDI (appellant)
FILE NO/S:	CA No 190 of 2019 DC No 122 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Maroochydore – Date of Conviction: 1 July 2019 (Long SC DCJ)
DELIVERED ON:	10 November 2020
DELIVERED AT:	Brisbane
HEARING DATE:	5 June 2020
JUDGES:	Fraser and McMurdo JJA and Bradley J
ORDER:	The appeal against the convictions on counts 11 and 12 on the indictment be dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of two counts of indecent treatment of children under 16 years who were under his care, by exposing them to an indecent act by another person – where the appellant submits that the trial judge erred in not providing a direction in all respects which complied with Longman v The Queen (1989) 168 CLR 79 – whether a miscarriage of justice occurred CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant submits that there was a miscarriage of justice because relevant evidence was not led at the trial – where the evidence was to the effect that the family lived at the house, where this incident was alleged to have occurred, for only about five or six weeks, from which it is said that it was unlikely that the incident occurred – whether a miscarriage of justice occurred CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant submits that the verdicts were unreasonable, or cannot be supported having regard to the evidence, because of various inconsistencies in the evidence of witnesses – whether the verdicts were unreasonable Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26, cited Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, considered Mallard v The Queen (2005) 224 CLR 125; [2005] HCA 68; cited Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35, cited
COUNSEL:	K M Hillard with A J Cousen for the appellant S L Dennis for the respondent
SOLICITORS:	Brisbane Criminal Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent