R v Mej

Case [2024] QCA 249

SUPREME COURT OF QUEENSLAND

CITATION:

R v MEJ [2024] QCA 249

PARTIES:

R
v
MEJ
(appellant)

FILE NO/S:

CA No 223 of 2022
DC No 289 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Maroochydore – Date of Conviction: 1 September 2022 (Rosengren DCJ)

DELIVERED ON:

10 December 2024

DELIVERED AT:

Brisbane

HEARING DATE:

13 November 2024

JUDGES:

Bowskill CJ and Boddice JA and Doyle AJA

ORDERS:

1.   The appeal is allowed.

2.   The verdicts of guilty of counts 1, 2, 3, 6, 7, 8 and 10 set aside.

3.   There be a new trial.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted by a jury of five counts of assault occasioning bodily harm whilst armed, one count of assault occasioning bodily harm and one count of common assault – where the jury found the appellant not guilty of one count of threatening violence and two counts of assault occasioning bodily harm – where the appellant submits certain counts could not have occurred on or within the dates charged – whether the verdicts are unreasonable or cannot be supported having regard to the whole of the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the jury found the appellant not guilty of one count of threatening violence and two counts of assault occasioning bodily harm – where the complainant’s credibility was relied upon in reaching the guilty verdicts – where the jury acquitted the appellant on counts where the complainant’s evidence and recall were more general – whether the verdict of guilty was inconsistent with the other verdicts

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the trial judge provided written directions to the jury in respect of the offences involving the use of a weapon – where directions were made guiding the jury as to which elements of the counts were in dispute – where one of the directions noted the element of being armed with an offensive or dangerous instrument was “not in dispute” – where it was not disputed that the particularised weapon or instrument was dangerous or offensive – where it was disputed that the appellant was armed with that weapon or instrument – whether the directions occasioned a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was charged with separate counts of violence – where evidence at trial, elicited through cross-examination of the complainant, included evidence of discreditable conduct by the appellant – where the trial judge’s summing up included a direction to consider each charge separately, as well as general directions confining the use of the uncharged acts to relationship or contextual evidence, and warning…

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R v Mej [2024] QCA 249
Case
[2024] QCA 249
Decision Date

CaseChat Overview and Summary

In the case of R v Mej, the appellant was convicted by a jury of multiple counts of assault occasioning bodily harm while armed, one count of assault occasioning bodily harm, and one count of common assault. The jury acquitted the appellant of one count of threatening violence and two counts of assault occasioning bodily harm. The appellant appealed the convictions, submitting that certain counts could not have occurred on or within the dates charged, and that the verdicts were unreasonable or could not be supported by the evidence. The court was required to determine whether the verdicts were unreasonable or could not be supported by the evidence, whether there were inconsistent verdicts, and whether the trial judge's directions to the jury occasioned a miscarriage of justice.

The court found that the evidence provided by the complainant was the only evidence supportive of the commission of the offences, and that there were inconsistencies in the complainant's evidence as to some events relevant to each offence and as to what she had said to police on the occasions they attended the residence during the relationship. The court found that the inconsistencies, discrepancies, and other evidence were of such a nature that a reasonable doubt ought to have been entertained. The court also found that the trial judge's directions to the jury did not occasion a miscarriage of justice. However, the court found that there was a miscarriage of justice because the verdicts of the jury were unreasonable and not supported by the evidence.

The appeal was allowed, the verdicts of guilty on Counts 1-3, 6-8 and 10 were set aside, and a new trial was ordered. The court found that the inconsistencies in the complainant's evidence and other evidence were of such a nature that a reasonable doubt ought to have been entertained, and that the verdicts of the jury were unreasonable and not supported by the evidence. The court also found that the trial judge's directions to the jury did not occasion a miscarriage of justice. However, the court found that there was a miscarriage of justice because the verdicts of the jury were unreasonable and not supported by the evidence.

Orders

Orders of the court

1. The appeal is allowed.

2. The verdicts of guilty of counts 1, 2, 3, 6, 7, 8 and 10 set aside.

3. There be a new trial.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The issue for the jury was whether they were satisfied, beyond reasonable doubt, that the appellant had done each of the acts the subject of the counts. It was put to the complainant that no such events occurred, other than count two when it was put that the bottle struck her accidentally, when she stood up, as it was thrown towards a bin.Evidence The complainant first met the appellant whilst she was at high school. They became a couple and were in a relationship by 2004 and separated in 2013. In 2004, they travelled to North Queensland. Upon their return, in about May 2004, they lived with the appellant’s mother. They did not have any children at that stage. In or about June or July 2004, the complainant said they were at home with a male friend. The complainant made a remark to the appellant, in jest. The appellant said, “How dare you”. He confronted the complainant and without permission, held a black serrated knife with a blade approximately three to four inches long, under her chin. The blade cut her underneath the left hand side of the chin, causing a scar. (Count 1). The male friend went upstairs. The complainant was told by the appellant to go and explain herself. The cut caused her discomfort for approximately a week. She did not seek any medical treatment. The complainant identified police photographs taken in 2014, of what she said was that scar. The complainant and the appellant moved to Noosa Heads in about April 2005, living there until 26 March 2010. Their two daughters were born whilst they were living at that residence. The complainant said that sometime after the first daughter was born, and when a male friend was present in the loungeroom drinking with the appellant, she was asked by the appellant to do something. The appellant was agitated and as she stood up, the male friend said, “Look out.” The complainant felt something hit her in the head. Blood was coming from the top of her head. (Count 2). An ambulance was called and the complainant received stitches. When she returned home from seeing a doctor, she found the couch soaked in blood. There was blood on the floor. A beer bottle was also on the floor. It had not smashed. It had not been there prior to the complainant standing up. She did not give the appellant permission to strike her with any object. She suffered pain for probably about a month. Photographs were shown to the jury of a scar said to have been left from that injury. The complainant said that whilst they continued to live at that address, she had an argument with the appellant, who accused her of seeing someone. They were in the loungeroom together. No one else was present. The appellant grabbed her arm with pliers and twisted the upper left hand part. (Count 3). She felt immediate pain. The jaws of the pliers had skin and blood on them. She did not give the appellant permission to use the pliers on her arm. She had a bruise for two to three weeks and was left with a scar. Photographs of what was said to be the scar were shown to the jury. The complainant did not seek medical attention.

Decision

Reasons for decision

I have not overlooked the significance of the failure of defence counsel to seek any more specific directions or redirection, and of the fact that the jury did return verdicts of not guilty in relation to some counts. However, in the circumstances I have described, I am satisfied there was a miscarriage of justice.Conclusion In circumstances where I consider it appropriate to allow the appeal on Ground 6, I do not consider it necessary to address Ground 5. For the reasons given, I would allow the appeal, set aside the verdicts of guilty on Counts 1-3, 6-8 and 10, and order a new trial.

Ratio Decidendi

Legal Principle Established

In re-examination, the complainant said on each occasion police attended the residence, police spoke to her and the appellant together. When she told the police there were no assaults or threats, that was not true. She said those things because the appellant was right next to her. When she made the complaints of domestic violence in Townsville, she had put “1500 ks between myself and the perpetrator”.[6] The appellant was living on the Sunshine Coast. They were no longer in a relationship. The complainant said she did not retract her evidence about suffering bruising every day. The photographs she posted at that time were for social media purposes and “you definitely don’t post the ones that show how your life actually are”.[7]Consideration[6]AB 148/46.[7]AB 149/20.Ground 1 The determination of a ground of appeal that the verdict of the jury was unreasonable and not supported by the evidence, requires an appellate court to undertake its own independent assessment of the record as a whole, to determine whether it was open to the jury to be satisfied of the appellant’s guilt of the offence, beyond reasonable doubt.[8] The Court proceeds on the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable.[9][8]Dansie v The Queen [2022] HCA 25 at [9] (“Dansie”).[9]Pell v The Queen (2020) 268 CLR 123 at [9]. In reaching a conclusion, due regard is given to the jury’s role in a criminal trial and the advantages afforded to it, by having seen and heard the witnesses.[10] However, if on the consideration of the record there are inconsistencies, discrepancies, or other evidence which, allowing for the jury’s role and advantages, are of such a nature that a reasonable doubt ought to have been entertained, the verdict is to be set aside as unreasonable.[11][10]Dansie v The Queen [2022] HCA 25 at [9], citing M v The Queen (1994) 191 CLR 487 at 493.[11]Pell at [39]. In the present case, satisfaction of the appellant’s guilt of each of the offences, beyond reasonable doubt, required the jury to be satisfied of the truth and accuracy of the complainant’s evidence as to the commission of each of the offences. That conclusion follows from the fact that there was no evidence supportive of the commission of any of the offences, other than the evidence given by the complainant. The admissions only established residency dates and visits to hospitals or by police. Although there were medical records supportive of times consistent with the commission of the offences, the accounts given at that time were inconsistent with the complainant’s evidence as to what had occurred at the time of those injuries. A consideration of the record supports a conclusion that there were inconsistencies in the complainant’s evidence as to some events relevant to each offence and as to what she had said to police on the occasions they attended the residence during the relationship. There were also inconsistencies in the contents of photographs posted by her during the relationship and her evidence of almost daily domestic violence.