R v NM

Case [2012] QCA 173 26 June 2012

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SUPREME COURT OF QUEENSLAND

CITATION:

R v NM [2012] QCA 173

PARTIES:

R
v
NM
(applicant)

FILE NO/S:

CA No 333 of 2011
DC No 249 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

26 June 2012

DELIVERED AT:

Brisbane

HEARING DATE:

11 May 2012

JUDGES:

Holmes JA, Fryberg and Martin JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Grant leave to appeal on the ground that the convictions were unsafe and unsatisfactory.

2. Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – POWER TO BRING AN APPEAL –GENERALLY – where appellant appealed on the ground that the conviction was unsafe and unsatisfactory – where leave had not been sought or obtained – whether appeal as of right or by leave

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where complainant made complaint to grandmother of indecent treatment – where evidence was not about the commission of the offence – whether the complainant's statements were admissible as preliminary complaints under s 4A Criminal Law (Sexual Offences) Act 1978 (Qld)

WORDS AND PHRASES – “about”, “preliminary complaint”

Criminal Code 1899 (Qld), s 668D
Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A
Criminal Practice Rules (Qld), r 65

HML v The Queen[2008] HCA 16; (2008) 235 CLR 334, cited
M v The Queen [1994] HCA 63; (1994) 181 CLR 487, cited
R v AW[2005] QCA 152, followed
R v C [1999] QCA 166, cited
R v CAU [2010] QCA 46, followed
R v May, Monaghan, King and Rees Court of Criminal Appeal unreported No 178 of 1980, 5 January 1981, cited
R v Nichols, Johnson and Aitcheson [1958] Qd R 200, cited
R v Redgard [1956] St R Qd 1, cited
R v Riera [2011] QCA 77, followed
R v Ross, Thomas McCarthy and Ada McCarthy [1955] St R Qd 48, cited
R v Van Der Zyden[2012] QCA 89, followed

COUNSEL:

J Benjamin for the applicant
D L Meredith for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

HOLMES JA: I have had the benefit of reading the reasons of Fryberg J. I agree with his Honour’s analysis of the compass of s 4A of the Criminal Law (Sexual Offences) Act 1978 and with his Honour’s conclusion that the evidence of MS was not about the commission of the offence and should not have been admitted; but that no miscarriage of justice resulted from its admission. I agree too, for the reasons his Honour has given, that the appellant has failed to make out the ground that the verdict was unsafe and unsatisfactory (or, more properly, unreasonable).

I would make some comment on one matter,…

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 NM

Details

AGLC: R v NM [2012] QCA 173
Case: [2012] QCA 173
Decision Date: 26 June 2012

CaseChat Overview and Summary

The appellant, NM, sought to appeal against the conviction and sentence imposed by the Magistrates' Court. The appeal was based on the ground that the conviction was both unsafe and unsatisfactory, specifically arguing that the trial magistrate had improperly admitted evidence regarding the complainant's complaint to her grandmother about the appellant's indecent treatment. This complaint, which NM argued was not "about" the commission of the offence, was deemed inadmissible under section 4A of the Criminal Law (Sexual Offences) Act 1978 (Qld). The court had to determine whether NM's appeal could proceed without leave and if the evidence was properly admitted under the act's provisions.

The primary legal issues involved the interpretation of "about" in the context of section 4A of the Criminal Law (Sexual Offences) Act 1978 (Qld) and the procedural requirements for NM's appeal. The court examined whether the evidence of the complainant's complaint to her grandmother constituted a preliminary complaint that was relevant and admissible. Furthermore, the court considered whether the appeal was properly brought as of right or if it required leave, given that NM did not seek or obtain leave to appeal.

The Court of Appeal held that the interpretation of "about" in section 4A of the act meant that the complaint to the grandmother was not sufficiently related to the offence itself. Consequently, the admission of this evidence was improper. However, the court determined that this error did not amount to a miscarriage of justice. Regarding the procedural aspect, the court ruled that the appeal was not brought as of right and that leave was required. Since NM did not seek or obtain leave, the appeal was dismissed. The court granted leave to appeal on the ground that the convictions were unsafe and unsatisfactory but ultimately dismissed the appeal.

The court dismissed the appeal and denied NM's request for leave to appeal on the ground that the convictions were unsafe and unsatisfactory. The appeal was quashed, and the original conviction and sentence remained in place.

Orders

Orders of the court

1. Grant leave to appeal on the ground that the convictions were unsafe and unsatisfactory.

2. Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Actions

Citations

R v NM [2012] QCA 173

Most Recent Citation

R v MCC [2014] QCA 253

Cases Citing This Decision

Woodgate (Trustee), in the matter of Anstee (Bankrupt) [2025] FedCFamC2G 863
Citation 1 (Para 9)

…person or to any of his or her conduct, dealings, transactions, property and affairs. [28] R v NM [2012] QCA 173, at [23] (Fryberg J). [29] Two meanings of “about” given in the Macquarie Dictionary Online (accessed on 28 May 2025) includes “connected with”, and “somewhere near or in”; and one set of meanings give…
R v CDI [2024] QCA 232
Citation 2

…W [2005] QCA 152, followed R v Lillyman [1896] 2 QB 167; [1896] UKLawRpKQB 126, cited R v NM [2013] 1 Qd R 374; [2012] QCA 173, followed R v RH [2005] 1 Qd R 180; [2004] QCA 225, cited R v Riera [2011] QCA 77, cited COUNSEL: M F Bonasia for the appellant S L Dennis for the respondent SOLICITORS: George Criminal L…
Qube Ports Pty Ltd T/A Qube Ports v Construction, Forestry and Maritime Employees Union [2024] FWCFB 370
Citation 3 (Para 23)

…[20] R v NM [2012] QCA 173; [2012] 1 Qd R 374 at [23] (Fryberg J).…
R v CCY [2023] QCA 49
Citation 4 (Para 37)

…demonstrated a connection of subject matter. That connection may be demonstrated by commonality of time, place, event or conduct.[56] [56] R v NM [2012] QCA 173 at [24].…
R v Fax [2020] QChC 30
Citation 5

…te Attorney-General [1987] 1 Qd R 239, cited R v LSS [2000] 1 Qd R 546; [1998] QCA 303, cited R v Mulcahy [2010] ACTSC 98, applied R v NM [2012] QCA 173; [2012] 1 Qd R 374, cited R v RH [2005] 1 Qd R 180; [2005] QCA, cited R v Rutherford [2004] QCA 481, cited R v Van der Zyden [2012] QCA 89; [2012] 2 Qd R 568; 22…
R v KAW [2020] QCA 57
Citation 6 (Para 1)

…complaint about “uncharged acts”. Such evidence does not qualify for admission as preliminary complaint. As Fryberg J wrote in R v NM [2012] QCA 173 at [25]: “In a trial for a sexual offence, evidence of uncharged acts of sexual abuse by the accused against the complainant may be admissible for the purpose of exp…
R v Bdi [2020] QCA 22
Citation 7

…8] QCA 140, considered R v MCT [2018] QCA 189, considered R v NM [2013] 1 Qd R 374; [2012] QCA 173, considered R v Riera [2011] QCA 77, considered R v SBV [2011] QCA 330, considered Suresh v The Queen (1998) 72 ALJR 769; (1998) 153 ALR 145; [1998] HCA 23, considered COUNSEL: S G Bain for the appellant D Balic for…
R v CCH [2019] QCA 79
Citation 8 (Para 8)

…ny view as to the basis for its admission, the jury had to be told of the limited use which could be made of it. [14]cf R v NM [2013] 1 Qd R 374; [2012] QCA 173.…
R v RBA [2018] QCA 338
Citation 9

…0] 1 Qd R 546; [1998] QCA 303 , cited R v McDougall [1983] 1 Qd R 89, cited R v NM [2013] 1 Qd R 374; [2012] QCA 173, cited R v PAS [2014] QCA 289, cited R v RH [2005] 1 Qd R 180; [2004] QCA 225, cited R v Roissetter [1984] 1 Qd R 477, applied R v Rutherford [2004] QCA 481, considered R v Van Der Zyden [2012] 2 Q…
R v BCZ [2016] QCA 232
Citation 10 (Para 11)

…orting to describe an isolated event if otherwise his or her account might appear implausible.” [4][2011] QCA 77. [5][2013] 1 Qd R 374; [2012] QCA 173. [6][2013] 1 Qd R 374, 381; [2012] QCA 173 [24]-[25].…
Commissioner of the Australian Federal Police v Courtenay Investments Ltd (No 4) [2015] WASC 101
Citation 11 (Para 2)

…uld be limited to the doing of the precise act or the making of the precise omission rendering the doer or maker liable to punishment. [306] R v NM [2012] QCA 173. [307] R v NM [2012] QCA 173 [23].…
R v PAS [2014] QCA 289
Citation 12

…applied Criminal Code 1899 (Qld), s 668E(1)(A) Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A R v NM [2013] 1 Qd R 374; [2012] QCA 173, followed COUNSEL: M Copley QC for the appellant T Fuller QC for the respondent SOLICITORS: Legal Aid Queensland for the appellant Director of Public Prosecutions (Queenslan…
R v MCC [2014] QCA 253
Citation 13

…O [2012] QCA 54, cited R v H [1999] 2 Qd R 283; [1998] QCA 348, cited R v NM [2013] 1 Qd R 374; [2012] QCA 173, cited R v Riera [2011] QCA 77, cited R v SCG [2014] QCA 118, cited COUNSEL: A W Collins for the appellant J Robson for the respondent SOLICITORS: Legal Aid Queensland for the appellant Director of Publi…
Seymour v Racing Queensland Ltd [2013] QCATA 179
Citation 14 (Para 7)

…which require leave and those which do not. An appellant need file only one document in which all grounds are raised; see the analysis in R v NM [2012] QCA 173 per Holmes JA at [2]-[3].…

See all citing cases →

Cases Cited

R v Van Der Zyden [2012] QCA 89
Citation 1 (Para 1)

…nce given by the complainant herself of complaints to MS and several other people. That evidence too was admissible under s 4A: R v Van Der Zyden [2012] QCA 89 at [64], [68]. The omission was an error, but no redirection was sought. The appellant expressly disclaimed reliance on the error in the appeal.…
R v Riera [2011] QCA 77
Citation 2 (Para 1)

…was limited to showing how and when a complaint was made, but not including the content of the complaint.[10] [10] R v CAU [2010] QCA 46 ; R v Riera [2011] QCA 77 .…
R v CAU [2010] QCA 46
Citation 3 (Para 1)

…ection admissible evidence was limited to showing how and when a complaint was made, but not including the content of the complaint.[10] [10] R v CAU [2010] QCA 46 ; R v Riera [2011] QCA 77 .…
HML v The Queen [2008] HCA 16
Citation 4 (Para 1)

…ed course of conduct into multiple offences. No bright line test can be stated save by reiterating the terms of the section. [14] HML v The Queen [2008] HCA 16; (2008) 235 CLR 334.…
R v AW [2005] QCA 152
Citation 5 (Para 1)

…the credibility (or lack of credibility) of the complainant and the complaint.”[12] [11]Compare Criminal Code , s 2. [12] R v AW [2005] QCA 152.…
R v C [1999] QCA 166
Citation 6 (Para 1)

…it may be appropriate that a legislative amendment reflect that reality. [4]Court of Criminal Appeal unreported No 178 of 1980, 5 January 1981. [5][1999] QCA 166.…
M v the Queen [1994] HCA 63
Citation 7

…s 4A Criminal Practice Rules (Qld), r 65 HML v The Queen [2008] HCA 16; (2008) 235 CLR 334, cited M v The Queen [1994] HCA 63; (1994) 181 CLR 487, cited R v AW [2005] QCA 152, followed R v C [1999] QCA 166, cited R v CAU [2010] QCA 46 , followed R v May, Monaghan, King and Rees Court of Criminal Appeal unreporte…
Wendo v The Queen [1963] HCA 19
Citation 8 (Para 1)

…fresh complaint). I assume that the onus lay upon the Crown to prove that the elements of the section were satisfied.[8] [8]Compare Wendo v The Queen [1963] HCA 19; (1963) 109 CLR 559; R v Hagen [1966] Qd R 291.…

Legislation Cited

Criminal Law (Sexual Offences) Act 1978 (Qld) 4A
2 mentions (from Para 1)
District Court Act 1967 (Qld) 118)
1 mention (from Para 1)
Evidence Act 1977 (Qld)
1 mention (from Para 1)

CITATION:	R v NM [2012] QCA 173
PARTIES:	R v NM (applicant)
FILE NO/S:	CA No 333 of 2011 DC No 249 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	26 June 2012
DELIVERED AT:	Brisbane
HEARING DATE:	11 May 2012
JUDGES:	Holmes JA, Fryberg and Martin JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Grant leave to appeal on the ground that the convictions were unsafe and unsatisfactory. 2. Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – POWER TO BRING AN APPEAL –GENERALLY – where appellant appealed on the ground that the conviction was unsafe and unsatisfactory – where leave had not been sought or obtained – whether appeal as of right or by leave CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where complainant made complaint to grandmother of indecent treatment – where evidence was not about the commission of the offence – whether the complainant's statements were admissible as preliminary complaints under s 4A Criminal Law (Sexual Offences) Act 1978 (Qld) WORDS AND PHRASES – “about”, “preliminary complaint” Criminal Code 1899 (Qld), s 668D Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A Criminal Practice Rules (Qld), r 65 HML v The Queen[2008] HCA 16; (2008) 235 CLR 334, cited M v The Queen [1994] HCA 63; (1994) 181 CLR 487, cited R v AW[2005] QCA 152, followed R v C [1999] QCA 166, cited R v CAU [2010] QCA 46, followed R v May, Monaghan, King and Rees Court of Criminal Appeal unreported No 178 of 1980, 5 January 1981, cited R v Nichols, Johnson and Aitcheson [1958] Qd R 200, cited R v Redgard [1956] St R Qd 1, cited R v Riera [2011] QCA 77, followed R v Ross, Thomas McCarthy and Ada McCarthy [1955] St R Qd 48, cited R v Van Der Zyden[2012] QCA 89, followed
COUNSEL:	J Benjamin for the applicant D L Meredith for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent