R v Mdo - [2023] QCA 2

SUPREME COURT OF QUEENSLAND

CITATION:

R v MDO [2023] QCA 2

PARTIES:

R
v
MDO
(appellant)

FILE NO/S:

CA No 57 of 2022
DC No 41 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Innisfail – Date of Conviction: 14 March 2022 (Fantin DCJ)

DELIVERED ON:

Date of Orders: 17 November 2022
Date of Publication of Reasons: 12 January 2023

DELIVERED AT:

Brisbane

HEARING DATE:

17 November 2022

JUDGES:

Mullins P and Dalton and Flanagan JJA

ORDERS:

Date of orders: 17 November 2022

1.   Appeal allowed.

2.   Convictions set aside.

3.   New trial ordered on counts 1 – 8.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – where the appellant was convicted of various sexual offences against the same complainant including maintaining, indecent treatment and rape – where the offending was said to have occurred from when the complainant was 11 to 15 years old – where the complainant gave evidence that the appellant threatened to abuse her younger sister if she did not co-operate – where the mother gave evidence of the complainant starting to display bad behaviour during the offending period in the family home towards her sister and her mother and that her schoolwork was deteriorating – where central to the Crown case was that the complainant’s behaviour was at least in part due to the “threats” and “blackmail” from the appellant that he would abuse her younger sister – where none of the factual matters underpinning the Crown submission had been led through the complainant by the prosecutor in examination-in-chief – where the jury was invited to reason that the complainant’s change in behaviour towards her sister corroborated that she was being sexually abused by the appellant – whether there was a miscarriage of justice because the jury was invited to “speculatively draw an inference adverse to the accused” from the change in behaviour of the complainant towards her little sister – whether in these circumstances, the trial judge ought to have directed the jury to ignore the submission that they could draw an inference that the complainant’s change in behaviour corroborated the complainant’s evidence

R v Ambury[2012] QCA 178, cited
R v H[2001] QCA 563, cited
R v R [2019] 1 NZLR 693; [2019] NZSC 87, cited

COUNSEL:

M J Copley KC for the appellant
C W Wallis for the respondent

SOLICITORS:

Jasper Fogerty Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

MULLINS P: For the reasons given by Dalton JA, I joined in the making of the orders on 17 November 2022.
DALTON JA: The appellant was convicted after a trial of one count of maintaining a relationship with a child, five counts of indecent treatment of a child, and three counts of rape. He appeals on the basis that a miscarriage of justice occurred because evidence was admitted of a general behavioural change exhibited by…

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 Mdo

Details

AGLC: R v Mdo [2023] QCA 2
Case: [2023] QCA 2
Decision Date: 17 November 2022

CaseChat Overview and Summary

In the case of R v Mdo, the appellant was convicted of various sexual offences against the same complainant, including maintaining, indecent treatment, and rape. The offences were alleged to have occurred when the complainant was between 11 and 15 years old. The case centred on whether the jury was properly directed in relation to the use of evidence regarding the complainant's behavioural changes, which the Crown suggested corroborated her allegations of abuse by the appellant. The appellant argued that the trial judge should have directed the jury to disregard any inference that could be drawn from the complainant's behaviour, as it was speculative and potentially prejudicial.

The court was required to determine whether the trial judge's direction to the jury about the use of the complainant's behavioural change evidence was adequate and whether the jury's consideration of this evidence led to a miscarriage of justice. Specifically, the court had to consider whether the trial judge should have instructed the jury not to draw any adverse inferences from the complainant's changed behaviour towards her younger sister. The admissibility of such evidence is governed by the principles in sections 7 and 8 of the Evidence Act, which balance relevance and probative value against potential prejudice. The court had to examine whether the trial judge's instructions adequately managed this balance.

The court found that the trial judge did not sufficiently caution the jury about the limitations and potential prejudicial effects of drawing inferences from the complainant's behavioural changes. The court held that the trial judge should have given a more robust direction, advising the jury not to jump to conclusions based on the complainant's behavioural evidence. This failure in the trial judge's direction amounted to a miscarriage of justice. Consequently, the convictions were set aside, and a new trial was ordered on the specified counts.

ORDERS:
Date of orders: 17 November 2022
1. Appeal allowed.
2. Convictions set aside.
3. New trial ordered on counts 1 – 8.

Orders

Orders of the court

Date of orders: 17 November 2022

1. Appeal allowed.

2. Convictions set aside.

3. New trial ordered on counts 1 – 8.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Turning to the second ground of appeal, cases about the use of evidence as to general behavioural change as corroborative of sexual abuse of a child have been cautious and somewhat sceptical. The New Zealand case of R v R[1] is one of the few cases where evidence of change in behaviour was held to be admissible “as part of the context and relevant to the complainant’s credibility” in a sexual abuse case. The court said:“[44] The admissibility of this type of evidence has also been considered in other jurisdictions. It suffices for these purposes to note that the Australian, Canadian and the United Kingdom authorities, helpfully assembled by the respondent, indicate some caution towards the admissibility of this type of evidence but do not adopt a blanket rule against admissibility. Some of these cases are not easily reconciled, indicating the assessments made were fairly case-specific.[1][2019] 1 NZLR 693, 705.Summary of the position[45]To summarise, it is helpful to confirm that the admissibility of the evidence in issue is governed by the application of ss 7 and 8 of the Evidence Act 2006. In other words, the evidence will be admissible if it is relevant and its probative value is not outweighed by its unfairly prejudicial effect.[46]As was said in Henderson and by the Court of Appeal in this case, evidence of the sort in issue in this case is admissible where sufficiently proximate in time to the offending ‘as evidence that something out of the ordinary was happening in the complainant’s life’. Evidence of this nature may also provide the other side of the coin to reliance by the defence on aspects of the complainant’s behaviour, for example, as a response to reliance on the absence of any apparent change in the complainant’s behaviour. This evidence may also be admissible as part of the context. For example, it may, as was said in R (CA129/2017) v R, anticipate ‘the inevitable attack’ on the content of earlier complaints made by a complainant, or arising from the retraction of a complaint, or from continued contact with the defendant after alleged offending. Further, it may provide a response to reliance on delay in complaint.[47]We agree, as Mr Chisnall submits, that there is an inherent tension in the use of the evidence in issue here. That tension arises from the fact that this evidence inevitably has an element of self-boosting. As the respondent says, one of the reasons for leading the evidence is to show the something going on in the complainant’s life on the Crown case is the alleged offending. It is accordingly necessary to be cautious about claiming too much in reliance upon the evidence. For this reason also, the judge should consider the need to direct in relation to the proper use of the evidence and it will generally be important for the judge to direct the jury not to jump from the evidence of behavioural change to the conclusion that the offending must have occurred. That is particularly so in those cases where this type of evidence will be front and centre in the trial. In addition, the judge should also consider whether any tailored direction not to be influenced by matters of prejudice and sympathy should be given. We add that, as is implicit in our approach, evidence as to behavioural change within the ordinary experience and knowledge of lay people will not generally require expert evidence.” (my underlining).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v MDO [2023] QCA 2
PARTIES:	R v MDO (appellant)
FILE NO/S:	CA No 57 of 2022 DC No 41 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Innisfail – Date of Conviction: 14 March 2022 (Fantin DCJ)
DELIVERED ON:	Date of Orders: 17 November 2022 Date of Publication of Reasons: 12 January 2023
DELIVERED AT:	Brisbane
HEARING DATE:	17 November 2022
JUDGES:	Mullins P and Dalton and Flanagan JJA
ORDERS:	Date of orders: 17 November 2022 1. Appeal allowed. 2. Convictions set aside. 3. New trial ordered on counts 1 – 8.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – where the appellant was convicted of various sexual offences against the same complainant including maintaining, indecent treatment and rape – where the offending was said to have occurred from when the complainant was 11 to 15 years old – where the complainant gave evidence that the appellant threatened to abuse her younger sister if she did not co-operate – where the mother gave evidence of the complainant starting to display bad behaviour during the offending period in the family home towards her sister and her mother and that her schoolwork was deteriorating – where central to the Crown case was that the complainant’s behaviour was at least in part due to the “threats” and “blackmail” from the appellant that he would abuse her younger sister – where none of the factual matters underpinning the Crown submission had been led through the complainant by the prosecutor in examination-in-chief – where the jury was invited to reason that the complainant’s change in behaviour towards her sister corroborated that she was being sexually abused by the appellant – whether there was a miscarriage of justice because the jury was invited to “speculatively draw an inference adverse to the accused” from the change in behaviour of the complainant towards her little sister – whether in these circumstances, the trial judge ought to have directed the jury to ignore the submission that they could draw an inference that the complainant’s change in behaviour corroborated the complainant’s evidence R v Ambury[2012] QCA 178, cited R v H[2001] QCA 563, cited R v R [2019] 1 NZLR 693; [2019] NZSC 87, cited
COUNSEL:	M J Copley KC for the appellant C W Wallis for the respondent
SOLICITORS:	Jasper Fogerty Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent