R v MDY - [2024] QCA 119

SUPREME COURT OF QUEENSLAND

CITATION:

R v MDY [2024] QCA 119

PARTIES:

R
v
MDY
(appellant)

FILE NO/S:

CA No 152 of 2023
DC No 13 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Gladstone – Date of Conviction: 25 August 2023 (Gardiner DCJ)

DELIVERED ON:

Date of Orders: 14 June 2024
Date of Publication of Reasons: 21 June 2024

DELIVERED AT:

Brisbane

HEARING DATE:

16 May 2024

JUDGES:

Bond JA and Crow and Callaghan JJ

ORDERS:

Date of Orders: 14 June 2024

1.   Appeal allowed.

2.   Conviction set aside.

3.   New trial ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of rape – where the defence of accident was raised on the evidence – whether the defence of accident applied to the offence of rape – where the trial judge did not direct the jury on the defence of accident – whether this amounted to a miscarriage of justice – where the defence of mistake was raised on the evidence – where the trial judge did not direct the jury on the defence of mistake of fact – whether this amounted to a miscarriage of justice – where evidence of discreditable conduct was admitted – where there was no direction given to the jury to not engage in propensity reasoning – whether this amounted to a miscarriage of justice – whether the nature of the miscarriages of justice precluded the operation of the proviso

Criminal Code (Qld), s 23, s 24, s 36, s 668E(1A)

Collins v The King (2018) 265 CLR 178; [2018] HCA 18, cited
Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15, cited
Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7, cited
Orreal v The Queen (2021) 274 CLR 630; [2021] HCA 44, cited

COUNSEL:

J T Dudley for the appellant
M A Green for the respondent

SOLICITORS:

Alexander Rashidi Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

BOND JA: I have had the advantage of reading in draft the reasons for judgment of Callaghan J, with whose reasons I agree. I wish to add some further remarks.
The appellant was convicted after a jury trial on an indictment containing the single count “that on or about the 23rd day of December 2021 … MDY raped [the complainant] and the defence is a domestic violence offence”.
The particulars which were provided were:
“MDY penetrated [the complainant’s] anus with his penis without the consent of [the complainant].”
The particulars contained a footnote reference to paragraphs 32 to 37 of the complainant’s police statement. However, the police statement was not before the jury. Nor was it before this Court as part of the appeal record. Nevertheless, it was not contended on appeal that reference to the statement would have confined the particulars…

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 MDY

Details

AGLC: R v MDY [2024] QCA 119
Case: [2024] QCA 119
Decision Date: 21 June 2024

CaseChat Overview and Summary

The case of R v MDY involved the appellant's appeal against his conviction for the offence of rape. The appellant, MDY, had been found guilty by a jury of having sexual intercourse with another person without their consent. The primary dispute was whether the trial judge's failure to properly direct the jury on specific defences and evidentiary issues constituted a miscarriage of justice, thereby necessitating the setting aside of the conviction and ordering of a new trial. The Court of Appeal was tasked with determining whether the errors in the trial amounted to a miscarriage of justice and, if so, whether the proviso in the relevant statute precluded the granting of a new trial.

The court considered whether the trial judge's omission to direct the jury on the defence of accident, which was pertinent given the appellant's claim that the anal penetration was accidental, constituted a miscarriage of justice. The court also examined whether the failure to direct the jury on the defence of mistake of fact, where the appellant claimed he genuinely believed the complainant consented to anal sex, amounted to a miscarriage of justice. Furthermore, the court addressed whether the admission of evidence of discreditable conduct, without a proper direction to the jury to avoid propensity reasoning, also contributed to a miscarriage of justice.

The Court of Appeal held that the trial judge's errors in not directing the jury on the defences of accident and mistake of fact, and in not providing a direction to exclude propensity reasoning, were indeed significant and amounted to a miscarriage of justice. The court found that these errors had a substantial and material effect on the trial process, depriving the appellant of a fair trial. Consequently, the Court of Appeal concluded that the proviso did not preclude the granting of a new trial. The conviction was set aside, and a new trial was ordered.

In summary, the Court of Appeal allowed the appeal, set aside the conviction, and ordered a new trial. This decision underscores the critical importance of proper jury directions in criminal trials, particularly when specific defences are raised, to ensure a fair and just outcome.

Orders

Orders of the court

Date of Orders: 14 June 2024

1. Appeal allowed.

2. Conviction set aside.

3. New trial ordered.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The complainant also gave evidence to the effect that it had been made clear, at an early stage in the relationship, that anal intercourse was not an activity in which they would participate and not one to which she would give her consent.[9][9]Appeal Record Book, 128, line 40.The complainant’s evidence The couple disagreed about plans in the lead up to Christmas Day 2021. After an argument on 23 December, the appellant asked the complainant to leave the house, and said he would call the police if she did not. She did leave, but returned and eventually the couple went to bed together. Sexual activity began. The appellant performed oral sex upon the complainant,[10] and then suggested that they “have sex”. The complainant agreed and asked if they could “do it doggy style”.[11] They prepared for vaginal sex in a manner that saw the complainant’s chest and face on the mattress and pillow. The appellant was behind her, on his knees, and intercourse began, in that position, by way of his penis entering her vagina.[12][10]Appeal Record Book, 130.[11]Appeal Record Book, 131, lines 16-17.[12]Appeal Record Book, 131, lines 22-29. The complainant said that it did not take long before the appellant’s penis fell out, at which point he started to “push it” towards her anus. She “went to” ask him if he was trying to put it in there but did not get to the end of the question – the appellant “quite forcefully” thrust it in.[13][13]Appeal Record Book, 131, lines 31-37. This hurt, and she let him know that by saying “no” at least twice. The appellant told her to “calm down” and kept thrusting. The complainant said that she kept crying – she knew that this would get him angry but “he wasn’t stopping”. The appellant “finished fairly quickly” and said “that’s so good” or words to that effect. Evidence was given about that which occurred directly after the event, the physical effect of the act upon the complainant, subsequent communications between her and the appellant and other conversations which were characterised properly as preliminary complaint. It is not, for current purposes, necessary to canvass any of that evidence.The appellant’s account The appellant was interviewed by police and provided an account of events which, up until the point of anal penetration, corresponded closely enough with the version given by the complainant. He agreed that intercourse began in the manner described and that his penis left the complainant’s vagina. He also agreed that his penis was placed into the complainant’s anus. She then said words to the effect of “do you know where you are?” and he “pulled out”.[14] As he pulled out, he climaxed.[15][14]Appeal Record Book, 405, line 42.[15]Appeal Record Book, 406, line 30. There was some inconsistency in his estimate as to the duration of penetration, but on any fair reading of the interview[16] the appellant maintained that the insertion of his penis into the complainant’s anus was accidental, brief, and that he was “probably there for three strokes”.[17][16]On numerous occasions the appellant described the extent of penetration in terms such as “three strokes” or “too quick”. He insisted that he had “slipped out”, he went “straight in” (Appeal Record Book, 403, line 15), that it all occurred “in one motion” (Appeal Record Book, 404, line 50), that it was all “super super quick” (Appeal Record Book, 409, line 33), that he had come out and “literally just gone straight in” (Appeal Record Book, 412, line 55), that it was three thrusts in and out and that he had then climaxed “literally straight away” (Appeal Record Book, 413, line 30), that was “like three strokes” (Appeal Record Book, 416, line 54).[17]Appeal Record Book, 395, line 31.

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 MDY [2024] QCA 119
PARTIES:	R v MDY (appellant)
FILE NO/S:	CA No 152 of 2023 DC No 13 of 2023
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Gladstone – Date of Conviction: 25 August 2023 (Gardiner DCJ)
DELIVERED ON:	Date of Orders: 14 June 2024 Date of Publication of Reasons: 21 June 2024
DELIVERED AT:	Brisbane
HEARING DATE:	16 May 2024
JUDGES:	Bond JA and Crow and Callaghan JJ
ORDERS:	Date of Orders: 14 June 2024 1. Appeal allowed. 2. Conviction set aside. 3. New trial ordered.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of rape – where the defence of accident was raised on the evidence – whether the defence of accident applied to the offence of rape – where the trial judge did not direct the jury on the defence of accident – whether this amounted to a miscarriage of justice – where the defence of mistake was raised on the evidence – where the trial judge did not direct the jury on the defence of mistake of fact – whether this amounted to a miscarriage of justice – where evidence of discreditable conduct was admitted – where there was no direction given to the jury to not engage in propensity reasoning – whether this amounted to a miscarriage of justice – whether the nature of the miscarriages of justice precluded the operation of the proviso Criminal Code (Qld), s 23, s 24, s 36, s 668E(1A) Collins v The King (2018) 265 CLR 178; [2018] HCA 18, cited Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15, cited Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7, cited Orreal v The Queen (2021) 274 CLR 630; [2021] HCA 44, cited
COUNSEL:	J T Dudley for the appellant M A Green for the respondent
SOLICITORS:	Alexander Rashidi Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent