R v MDL - [2021] QCA 271

SUPREME COURT OF QUEENSLAND

CITATION:

R v MDL [2021] QCA 271

PARTIES:

R
v
MDL
(appellant)

FILE NO/S:

CA No 207 of 2019
DC No 335 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Childrens Court at Brisbane – Date of Conviction: 26 July 2019 (Richards DCJ)

DELIVERED ON:

10 December 2021

DELIVERED AT:

Brisbane

HEARING DATE:

26 August 2021

JUDGES:

Fraser and Mullins JJA and North J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – INFORMATION, INDICTMENT OR PRESENTMENT – AMENDMENT – GENERALLY – where the appellant was charged with one count of assault occasioning bodily harm in company and proceeded to trial – where the appellant was acquitted of assault occasioning bodily harm and found guilty of common assault – where the indictment, as initially presented, nominated the full name of the complainant – where the prosecution was unable to locate the complainant for the purpose of calling him as a witness at the trial – where the prosecution amended the indictment to substitute “a person” for the full name of the complainant – where the indictment nominated the co-defendant with whom the appellant was alleged to have been in company and identified the date and place of the assault – whether the trial judge erred in permitting the prosecution to amend the indictment to anonymise a known complainant

CRIMINAL LAW – PROCEDURE – ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS – STAY OF PROCEEDINGS – where the appellant was charged with one count of assault occasioning bodily harm in company and proceeded to trial – where the appellant was acquitted of assault occasioning bodily harm and found guilty of common assault – where the prosecution was unable to locate the complainant for the purpose of calling him as a witness at the trial – where the trial judge refused to stay the indictment until the complainant was located – where there were four independent witnesses who gave evidence – whether the trial judge erred in refusing to stay the indictment until the complainant was located – whether there was a miscarriage of justice as a result of the trial proceeding without the complainant being available to give evidence for the prosecution

Criminal Code (Qld), s 564

Nguyen v The Queen (2020) 269 CLR 299; [2020] HCA 23, cited
R v Apostilides (1984) 154 CLR 563; [1984] HCA 38, cited
R v Edwards (2009) 83 ALJR 717; [2009] HCA 20, considered
R v Manning[2017] QCA 23, cited
Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42, cited

COUNSEL:

A M Hoare and M G S Larsen for the appellant (pro bono)
A J Walklate for the respondent

SOLICITORS:

Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: I agree with the reasons for judgment given by Mullins JA and the order proposed by her Honour.
MULLINS JA: The appellant who was 15 years old at the time of 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 MDL

Details

AGLC: R v MDL [2021] QCA 271
Case: [2021] QCA 271
Decision Date: 10 December 2021

CaseChat Overview and Summary

In the matter of R v MDL, the appellant was charged with one count of assault occasioning bodily harm in company. The appellant proceeded to trial and was acquitted of the assault occasioning bodily harm but found guilty of common assault. The trial judge permitted the prosecution to amend the indictment to anonymise the complainant, and refused to stay the indictment until the complainant was located. The appellant appealed against the decision of the trial judge.

The legal issues before the court were whether the trial judge erred in permitting the prosecution to amend the indictment to anonymise a known complainant, and whether the trial judge erred in refusing to stay the indictment until the complainant was located. Additionally, the court had to consider whether there was a miscarriage of justice as a result of the trial proceeding without the complainant being available to give evidence for the prosecution.

The court held that the trial judge did not err in permitting the prosecution to amend the indictment to anonymise the complainant. The court noted that the complainant was not a material witness and that the prosecution had made strenuous efforts to locate the complainant. The court also held that the trial judge did not err in refusing to stay the indictment until the complainant was located. The court found that the refusal to stay the indictment did not result in a miscarriage of justice as there were four independent witnesses who gave evidence. The court held that the evidence of the four independent witnesses was sufficient to convict the appellant of common assault.

The appeal was dismissed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In order to deal with the ground of appeal based on the refusal of the stay, I will refer briefly to the relevant evidence at the trial and the findings made by the President.The evidence and findings Admissions were made for the purpose at the trial including the following. The police obtained CCTV footage depicting areas at and within the train station (which was where the assailants went after the assault on 23 October 2018). The appellant was arrested at approximately 3.07 pm on 23 October 2018 on the northbound platform of the subject train station. When the appellant was arrested the police seized and photographed his bag, hat, short-sleeved shirt, a pair of long pants and a pair of shoes. At the same time an alleged co-offender was also arrested at the subject train station and the police seized and photographed his hat, a pair of long pants and a pair of shoes. The appellant’s co-defendant with whom he went to trial was also arrested in the afternoon of 23 October 2018. The police seized and photographed his hat, a long-sleeved jacket, a pair of shorts and a pair of shoes. Ms K who was a high school student and wearing a school uniform was walking home from school on 23 October 2018. There were two boys from the same school walking in front of her, a Japanese student and AB who was Chinese and was tall and thin. They were also wearing school uniforms and heading in the same direction as Ms K. At one point, Ms K lost sight of the Japanese student and AB. She estimated they were out of her sight for three to five minutes. Then when she saw them next, there was “one big guy” beside AB with his arm completely around AB’s body. The assailant was wearing a red top. There were “two other guys” present beside them and one of them was swearing. Ms K saw the assailant slapping AB on his face with the palm of his hand and then the assailant and his two friends walked off. Ms K went up to AB and had a conversation with him. AB then followed the assailant and his friends and said, “give his phone back”. The assailant and his friends went back to AB and pushed him hard and AB started walking backwards with his arms in front of him. Ms K could not remember which of the three was pushing AB. AB was pushed to the other side of the road and ended up lying on the ground with the three assailants punching and kicking him on the top of his body and swearing. AB was saying “Stop it. Stop it”. Two cars stopped and people from those cars were then asking the assailants to stop. The assailants stopped punching and kicking AB and began walking towards the subject train station. Ms K could see red scars and a little bit of blood on AB’s face and blood on his mouth. A mother and daughter were in one of the cars that stopped at the incident. The mother was driving and the daughter was seated on the passenger side. The daughter’s evidence included the following. They parked their car on the opposite side of the road to the group of people. Half of them were in school uniforms and half were not. There was a young Asian man on the ground in a school uniform and “three guys around him beating him up”. One of the assailants was wearing a blue shirt and trackpants, another was wearing a red shirt with trackpants, and the third was wearing a red cap, shorts and a jacket. Some were kicking and some were punching the man on the ground. There was another person across the street who was wearing something red who was yelling out and laughing. The daughter moved towards the group and told the attackers to get off the man on the ground and that she was going to call the police. There was another young Asian boy who was not involved in the fight but was standing close by and also a young Asian girl. The daughter took photos on her phone of the three guys that were attacking the Asian guy on the ground. She saw the attackers walk towards the subject train station. The man who had been attacked had a swollen eye and cuts and grazes over his arms and legs and on his face. The daughter did not see anyone else with an injury.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	R v MDL [2021] QCA 271
PARTIES:	R v MDL (appellant)
FILE NO/S:	CA No 207 of 2019 DC No 335 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Childrens Court at Brisbane – Date of Conviction: 26 July 2019 (Richards DCJ)
DELIVERED ON:	10 December 2021
DELIVERED AT:	Brisbane
HEARING DATE:	26 August 2021
JUDGES:	Fraser and Mullins JJA and North J
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – PROCEDURE – INFORMATION, INDICTMENT OR PRESENTMENT – AMENDMENT – GENERALLY – where the appellant was charged with one count of assault occasioning bodily harm in company and proceeded to trial – where the appellant was acquitted of assault occasioning bodily harm and found guilty of common assault – where the indictment, as initially presented, nominated the full name of the complainant – where the prosecution was unable to locate the complainant for the purpose of calling him as a witness at the trial – where the prosecution amended the indictment to substitute “a person” for the full name of the complainant – where the indictment nominated the co-defendant with whom the appellant was alleged to have been in company and identified the date and place of the assault – whether the trial judge erred in permitting the prosecution to amend the indictment to anonymise a known complainant CRIMINAL LAW – PROCEDURE – ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS – STAY OF PROCEEDINGS – where the appellant was charged with one count of assault occasioning bodily harm in company and proceeded to trial – where the appellant was acquitted of assault occasioning bodily harm and found guilty of common assault – where the prosecution was unable to locate the complainant for the purpose of calling him as a witness at the trial – where the trial judge refused to stay the indictment until the complainant was located – where there were four independent witnesses who gave evidence – whether the trial judge erred in refusing to stay the indictment until the complainant was located – whether there was a miscarriage of justice as a result of the trial proceeding without the complainant being available to give evidence for the prosecution Criminal Code (Qld), s 564 Nguyen v The Queen (2020) 269 CLR 299; [2020] HCA 23, cited R v Apostilides (1984) 154 CLR 563; [1984] HCA 38, cited R v Edwards (2009) 83 ALJR 717; [2009] HCA 20, considered R v Manning[2017] QCA 23, cited Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42, cited
COUNSEL:	A M Hoare and M G S Larsen for the appellant (pro bono) A J Walklate for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the respondent