R v MEA

Case [2024] QCA 160

SUPREME COURT OF QUEENSLAND

CITATION:

R v MEA [2024] QCA 160

PARTIES:

R
v
MEA
(appellant)

FILE NO/S:

CA No 42 of 2023
DC No 2151 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 17 February 2023 (Sheridan DCJ)

DELIVERED ON:

3 September 2024

DELIVERED AT:

Brisbane

HEARING DATE:

10 April 2024

JUDGES:

Mullins P, Dalton JA and Cooper J

ORDER:

Appeal 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 found guilty after trial before a jury of maintaining a sexual relationship with a child, indecent treatment of a child under 16, under 12, under care, attempt to commit rape, two counts of indecent treatment of a child, under 16, under care and two counts of rape – where the offending was committed against the appellant’s partner’s daughter – where the complainant brought a notebook to her s 93A interview to which she referred on a few occasions in answering questions – where the notes were not tendered at trial – where the complainant gave evidence that the notes contained a list of things she wanted to talk to the police about and the addresses of the houses and the years the family had lived in the houses – where the complainant disclosed that her mother helped her with the dates at which they lived at the houses – where the complainant could not remember what she did with the notes and had been unable to find them – where the interviewing police officer gave evidence but was not asked about whether the notes were copied and, if so, what became of them – where the complainant’s mother’s evidence was that she did not assist the complainant in compiling notes – where the jury asked the judge whether they should draw an inference from the fact that the notes were not tendered – where the trial judge with the concurrence of the prosecutor and defence counsel gave a redirection that the jury were not to speculate about what the notes might contain and could not draw any inference from the fact that the notes were not in evidence – where the appellant submitted that there was a forensic disadvantage as the appellant was unable to analyse the notes or cross-examine the complainant on any discrepancies – whether the redirection by the trial judge was adequate to deal with the jury’s query about the missing notes

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was found guilty after trial before a jury of maintaining a sexual relationship with a child, indecent treatment of a child under 16, under 12, under care, attempt to commit rape, two counts of indecent treatment of a child, under 16, under care and two counts…

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AGLC
R v MEA [2024] QCA 160
Case
[2024] QCA 160
Decision Date

CaseChat Overview and Summary

The appellant, who was convicted of multiple offences including maintaining a sexual relationship with a child, indecent treatment of a child, and rape, appeals against his conviction to the court. The appellant contends that a miscarriage of justice occurred due to two main issues: the trial judge's failure to direct the jury about the forensic disadvantage caused by the loss of the complainant's notes from a Section 93A interview, and the trial judge's inadequate direction to the jury to approach the complainant's evidence with special care, given her diagnosed depersonalisation disorder and memory issues.

The court needed to determine whether the trial judge's directions to the jury were adequate in light of the appellant's submissions. Specifically, the court had to assess whether the redirection about the missing notes sufficiently addressed the jury's query and whether the direction concerning the complainant's evidence was appropriate given the particular circumstances of the case. The court examined whether these issues amounted to a miscarriage of justice that warranted a new trial.

In its reasoning, the court found that the trial judge's redirection to the jury regarding the missing notes was sufficient to prevent the jury from speculating about the content of the notes and to ensure that they did not draw any adverse inferences from their absence. The court held that the direction was adequate to address the jury's query without necessitating further explanation. Furthermore, the court found that the direction for the jury to approach the complainant's evidence with special care was appropriate, considering her mental health issues and memory problems. The court concluded that the trial judge's direction was adequate in the context of the evidence presented at the trial.

Accordingly, the court dismissed the appeal, upholding the conviction and finding no miscarriage of justice in the trial process.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

The appellant appeals against his conviction on two grounds:1.A miscarriage of justice was occasioned by the learned trial judge’s failure to direct the jury as to the forensic disadvantage the appellant suffered by virtue of the notes the complainant took with her to the s 93A interview being lost.2.A miscarriage of justice was occasioned by the trial judge’s failure to explain to the jury the reasons why they needed to scrutinise the complainant’s evidence with great care.Background The appellant began a relationship with the complainant’s mother in around 2011 and they lived together between August 2011 and January 2017 together with the complainant who was seven years old at the commencement of the relationship, her brother B who was two years younger than the complainant and (from April 2014) the child C of the relationship between the appellant and the complainant’s mother. They lived in one suburb (the first suburb) until they moved to another suburb in August 2013 (the second suburb). The relationship between the appellant and the complainant’s mother ended in October 2016 but he did not move from the family home immediately. There were admissions at the trial that the appellant moved to an apartment in January 2017 (the first apartment) and lived there until February 2018, when he moved to a second apartment. Count 1 was particularised as being committed between 31 August 2011 and 1 January 2019. It was not until May 2020 that the complainant commenced making some generalised complaints to friends of sexual abuse of her by the appellant. She made disclosures to her mother in November 2020 and her mother immediately took her to the police to make a complaint.Summary of the evidence of the offences The complainant’s s 93A interview was recorded on 11 December 2020. The complainant described the appellant’s conduct in that interview as follows. The first incident (count 2) occurred in 2012 at the house in the first suburb when the complainant was seven or eight years old and her mother was out. The complainant was sitting on the couch with the appellant and B was on the other couch. The appellant whispered to the complainant, asking whether she wanted to stay up later that night and the complainant responded in the affirmative. After B went to bed, the appellant took the complainant into the bedroom shared by the complainant’s mother and the appellant and told her to get the whipped cream out of the refrigerator which she did. He put some on his penis and told the complainant to lick it off. The complainant refused to do so and he then put some whipped cream on his upper left thigh and forced her to lick it off. The complainant could not “really remember” any other incidents from the house in the first suburb. The complainant remembered the appellant sneaking into her room in the house in the second suburb a couple of times at night “to do stuff” which he called “secret stuff”. The appellant gave her code words of “platypus and echidna”. He would go up to the complainant and ask “platypus or echidna”, but the complainant did not remember which one was “no” but she would always say the one that was “no” or that she did not want to do anything. Both before and after C was born, the appellant would make the complainant sit on top of him when he was seated on the couch, so that the complainant’s legs were facing him and she remembered him lifting her up and down. On other occasions, when the appellant was lying down in the bedroom, he would get the complainant on top of him and pull her up and down, so she was rubbing him. Sometimes she was clothed and sometimes she was not.

Evidence

Evidence Before The Court

It was not until May 2020 that the complainant commenced making some generalised complaints to friends of sexual abuse of her by the appellant. She made disclosures to her mother in November 2020 and her mother immediately took her to the police to make a complaint.Summary of the evidence of the offences The complainant’s s 93A interview was recorded on 11 December 2020. The complainant described the appellant’s conduct in that interview as follows. The first incident (count 2) occurred in 2012 at the house in the first suburb when the complainant was seven or eight years old and her mother was out. The complainant was sitting on the couch with the appellant and B was on the other couch. The appellant whispered to the complainant, asking whether she wanted to stay up later that night and the complainant responded in the affirmative. After B went to bed, the appellant took the complainant into the bedroom shared by the complainant’s mother and the appellant and told her to get the whipped cream out of the refrigerator which she did. He put some on his penis and told the complainant to lick it off. The complainant refused to do so and he then put some whipped cream on his upper left thigh and forced her to lick it off. The complainant could not “really remember” any other incidents from the house in the first suburb. The complainant remembered the appellant sneaking into her room in the house in the second suburb a couple of times at night “to do stuff” which he called “secret stuff”. The appellant gave her code words of “platypus and echidna”. He would go up to the complainant and ask “platypus or echidna”, but the complainant did not remember which one was “no” but she would always say the one that was “no” or that she did not want to do anything. Both before and after C was born, the appellant would make the complainant sit on top of him when he was seated on the couch, so that the complainant’s legs were facing him and she remembered him lifting her up and down. On other occasions, when the appellant was lying down in the bedroom, he would get the complainant on top of him and pull her up and down, so she was rubbing him. Sometimes she was clothed and sometimes she was not. The attempted rape (count 3) was committed when the complainant was 10 or 11 years old and was lying unclothed on the bed in her mother’s bedroom in the house in the second suburb and the appellant was standing at the edge of the bed and tried unsuccessfully to insert his penis into the complainant’s vagina. The complainant tried to push him away as he was hurting her. That was the first time the appellant tried to penetrate her. There were another one or two times at the house in the second suburb when the appellant tried to penetrate the complainant’s vagina but the complainant did not remember them as clearly as the first time. In 2015, the appellant drove the complainant to the Gold Coast. The complainant was sitting in the front seat when the appellant grabbed her hand and put it on his penis and made her rub his penis over his clothes (count 4). The appellant pushed his pants down, exposed his penis and made the complainant put her mouth on his penis (count 5).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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