R v Mko

Case [2022] QCA 272

SUPREME COURT OF QUEENSLAND

CITATION:

R v MKO [2022] QCA 272

PARTIES:

R
v
MKO
(appellant)

FILE NO/S:

CA No 249 of 2021
DC No 60 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Beenleigh – Date of Conviction: 17 September 2021 (Dann DCJ)

DELIVERED ON:

23 December 2022

DELIVERED AT:

Brisbane

HEARING DATE:

9 November 2022

JUDGES:

Mullins P and McMurdo and Flanagan JJA

ORDER:

Appeal dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – VERDICT AGAINST EVIDENCE OR WEIGHT OF EVIDENCE – VERDICT AGAINST EVIDENCE – where the child complainant’s evidence contradicted his police interview – where the complainant admitted to lying – where the complainant’s evidence was central at trial – whether the guilty verdict of the jury was unsafe and unsatisfactory

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – JUDGE’S SUMMING UP – GENERALLY – Robinson direction – evidence of children – where the child complainant’s evidence contradicted his police interview – where the complainant admitted to lying – where the credibility and reliability of the complainant were central to the trial – whether the directions warning the jury about the specific features of the case which impacted the complainant’s credibility and reliability were inadequate

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – JUDGE’S SUMMING UP – GENERALLY – where the indictment had additional circumstances of aggravation – where the additional circumstances derived from a repealed law – where the additional circumstances included, inter alia, the circumstance that the appellant raped the complainant – where the jury were instructed they did not need to be satisfied beyond reasonable doubt of which sexual acts had occurred – where the learned trial judge directed as to the elements of the offence, maintaining a sexual relationship with a child, but not the circumstances of aggravation, rape, contained in the indictment – where the associate called the verdict including the circumstances of aggravation – where the jury responded guilty to the count and all circumstances of aggravation – whether the trial judge’s failure to direct the jury in relation to the alleged circumstances of aggravation occasioned a miscarriage of justice

CRIMINAL LAW – PROCEDURE – PROSECUTION – FILING OF INFORMATION, PRESENTMENT OR INDICTMENT – QUEENSLAND – the offence of maintaining a sexual relationship with a child – interpretation of s 229B Criminal Code (Qld) – where there was surplusage in the indictment – where the surplusage was based on a repealed law – where the surplusage stated circumstances of aggravation which no longer exist at law – whether a miscarriage of justice occurred

Criminal Code (Qld), s 229B

Hofer v The Queen (2021) 95 ALJR 937; [2021] HCA 36, followed

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AGLC
R v Mko [2022] QCA 272
Case
[2022] QCA 272
Decision Date

CaseChat Overview and Summary

In the matter of R v Mko, the appellant appealed against his conviction and sentence on several grounds. The central dispute was whether the jury's verdict was unsafe and unsatisfactory due to the evidence presented, whether the judge's directions to the jury regarding the child complainant's credibility were inadequate, and if the trial judge misdirected the jury on the elements of the offence. The case was heard in the Queensland Court of Appeal.

The court needed to determine if the jury's verdict was unreasonable or could not be supported by the evidence, considering the complainant's evidence was central to the trial but contradicted his police interview and included admissions of lying. Additionally, the court had to assess whether the judge's directions to the jury regarding the specific features of the case affecting the complainant's credibility and reliability were adequate. Lastly, the court needed to decide if the trial judge's failure to direct the jury on the alleged circumstances of aggravation, which derived from a repealed law, resulted in a miscarriage of justice.

The court found that the jury's verdict was not unsafe or unsatisfactory despite the contradictions in the complainant's evidence. The court held that the jury was entitled to assess the complainant's credibility and reliability, and their verdict was supported by the evidence. Regarding the judge's directions, the court determined that the directions given were sufficient to warn the jury about the specific features of the case that impacted the complainant's credibility and reliability. Finally, the court concluded that the trial judge's failure to direct the jury on the circumstances of aggravation did not occasion a miscarriage of justice because the jury was not required to be satisfied beyond reasonable doubt of the specific sexual acts that occurred.

The appeal was dismissed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

There are three grounds of appeal:(a)the verdict of the jury was unsafe and unsatisfactory having regard to the evidence (Ground One); (b)the directions warning the jury about the specific features of the case which affected the complainant’s credibility and reliability were inadequate (Ground Two); and(c)the learned trial judge misdirected the jury on the elements of the offence (Ground Three).Ground One: The verdict of the jury was unsafe and unsatisfactory having regard to the evidence. The issue raised by this ground of appeal is whether this Court, as an appellate court, is of the opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence pursuant to s 668E(1) of the Criminal Code (Qld).[1] On the authority of M v The Queen,[2] that involves a determination as “to whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the [appellant] was guilty.[3][1]R v Schafer [2017] QCA 288 at [131].[2](1994) 181 CLR 487.[3]At 494 – 495; see also R v Baden-Clay (2016) 258 CLR 308 at [66]. In Pell v The Queen[4] the High Court observed:[4](2020) 268 CLR 123 at 145 [39] (citations omitted). “The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.”(a)The complainant’s evidence The complainant’s evidence consisted of a video interview with police made on 6 October 2017 tendered pursuant to s 93A of the Evidence Act 1977 (Qld) and evidence given in court on 23 August 2019 pursuant to s 21AK of the same Act. The complainant was eight years of age when interviewed by police and 10 years of age when he gave his evidence in court. Prior to being interviewed by police, the complainant was not informed what the police wished to speak to him about. This was confirmed by the complainant in the interview. When asked what he was there to talk about, he replied “I have no idea” and “my mum didn’t even tell me”. The interview commenced with general questions concerning the complainant’s sister and mother. The complainant was asked to tell police “everything about Dad”. The complainant stated that his father would buy him a Lego set when the complainant was angry. If he became angry too much his father would not buy him a Lego set but would give him “a punishment”. This consisted of the father telling the complainant to go to his room and not receiving dessert. The complainant referred to his mother and father being “split up”. When asked whether he received other punishment, the complainant stated that his father sometimes smacked his bottom and yelled at him. His father would pull down his pants and smack his bottom. Other times the complainant was “grounded for like a week” and not allowed to use his iPad or internet for a week.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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