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R v MCJ (No 2)

 

[2019] QCA 174

SUPREME COURT OF QUEENSLAND

CITATION:

R v MCJ (No 2) [2019] QCA 174

PARTIES:

R

v

MCJ

(appellant)

FILE NO/S:

CA No 292 of 2017

DC No 2582 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

Miscellaneous Application – Criminal

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 17 November 2017 (McGinness DCJ)

DELIVERED ON:

6 September 2019

DELIVERED AT:

Brisbane

HEARING DATE:

9 May 2019

JUDGES:

Gotterson and McMurdo JJA and Mullins J

ORDERS:

  1. Application to adduce further evidence refused.
  2. Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was found guilty of 12 counts of various sexual offences – where the trial from which this appeal arises was a re-trial – where the appellant contended that the complainant’s evidence at the re – trial was tainted by contradictions, inconsistencies, recent inventions and changes in her evidence between trials and received little support from other adult witnesses who gave evidence at the re-trial – whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of each offence

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where the appellant was found guilty of 12 counts of various sexual offences – where the trial from which this appeal arises was a re-trial – where, during the re-trial, the complainant and her brother were asked whether they had previously given evidence or had given sworn testimony on a previous occasion – where the fact that reference might be made to a previous trial was brought up by counsel but no direction was sought and none was given – whether, notwithstanding that such a direction was not sought, a miscarriage of justice resulted from an absence of a direction about the previous trial

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where, during deliberations, the jury made a request to hear again evidence given by the complainant’s aunt about a conversation – where the learned trial judge reminded the jury that the complainant’s aunt was the only person who gave evidence about that conversation – where the learned trial judge’s associate in fact read to the jury the evidence given by the complainant’s mother about that conversation – where the learned trial judge confirmed with the parties in front of the jury that both the complainant’s mother and her aunt gave evidence of that conversation – where the learned trial judge’s associate then read out evidence of the conversation given by the complainant’s aunt – where the appellant submitted on appeal that a miscarriage of justice had resulted because the learned trial judge’s response to the jury’s request was incorrect and the jury had been confused – whether a miscarriage of justice was occasioned

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNT TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant alleged that certain conduct of the prosecutor caused a miscarriage of justice, including that the prosecutor misled the jury in a number of respects, improperly suggested to the jury that the complainant would not have had a motive to lie in giving her evidence, and expressed his personal opinion which was not supported by the evidence – whether the prosecutor misled the jury – whether the prosecutor improperly suggested to the jury that the complainant would not have had a motive to lie – whether the prosecutor expressed personal opinions held by him

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where the complainant wrote a note to the appellant which was laminated by the complainant’s mother a few days after it had been found – where the learned trial judge gave directions about the use to be made of the note in line with the reasoning of this Court in the first appeal – where the appellant contended on appeal that, because of the note’s appearance, there was a risk that the directions given to the jury might have left them with the impression that the note was a piece of evidence independent of the complainant – where the appellant contended that because the jury were not directed to that effect a miscarriage of justice was occasioned – where the appellant also argued the jury should have been directed to guard against giving the statements in the note disproportionate weight, or alternatively, the note should have been withheld from the jury during their deliberations pursuant to s 99 of the Evidence Act 1977 (Qld) – where the appellant also argued the learned trial judge did not comply with s 102 of the Evidence Act by not directing the jury about the note’s contemporaneity with the alleged offending and whether the complainant had any incentive to conceal or misrepresent the facts – whether the directions that were given left the jury with the impression that the complainant’s note had an evidential status independent of the complainant – whether the jury were adequately instructed with respect to the note – whether additional directions were required

Evidence Act 1977 (Qld), s 99, s 102

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited

R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, cited

COUNSEL:

The appellant appeared on his own behalf

D Balic for the respondent

SOLICITORS:

The appellant appeared on his own behalf

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    GOTTERSON JA:  At a trial over five days in the District Court at Brisbane which concluded on 17 November 2017, the appellant, MCJ, was found guilty on 12 counts on a 13 count indictment.  The Crown had entered a nolle prosequi on the other count (Count 10).
  2. [2]
    Count 1 alleged an offence against s 229B of the Criminal Code (Qld) by maintaining an unlawful relationship of a sexual nature with a child under 16 years of age between 30 April 1996 and 19 September 2002 at Springwood and elsewhere in Queensland.  This count also alleged that the child was under 12 years of age and that in the course of the relationship, the appellant unlawfully and indecently dealt with her and raped her.
  3. [3]
    The child was named in the indictment.  I shall refer to her as “the complainant”.  She was born in 1990.  Her mother’s sister, Z, was married to the appellant during the period of the alleged offending, but was not married to him at the time of the trial.  The complainant’s mother had first met the appellant in 1987.
  4. [4]
    Counts 2, 3, 6, 9 and 12 alleged separate offences of unlawful and indecent dealing by the appellant with the complainant against s 210(1)(a) of the Code as follows:

Count 2

On a date unknown between 30 April 1996 and 1 September 1999

 

At Springwood

Count 3

On a date unknown between 30 April 1996 and 1 September 1999

 

At Springwood

Count 6

On a date unknown between 31 December 2000 and 1 January 2002

 

At Logan

Count 9

On a date unknown between 31 December 2000 and 19 September 2002

 

At Loganholme

Count 12

On a date unknown between 31 December 2000 and 19 September 2002

 

At Logan

In each of these counts, a circumstance of aggravation was alleged that the complainant was under 12 years of age.  There was an additional such circumstance alleged for Counts 6 and 12, namely, that the complainant was under the appellant’s care at the time.

  1. [5]
    Further offending against other provisions within s 210(1) of the Code was alleged in Counts 4, 5 and 13.  In Counts 4 and 5, the allegations were that on a date between 30 April 2000 and 1 July 2000 at Loganholme, without legitimate reason, the appellant took an indecent photograph of the complainant (Count 4) and of her brother, L (Count 5).  Each of the children was, it was alleged, under 12 years of age.  Count 13 alleged that on a date unknown between 31 December 2000 and 19 September 2002 at Loganholme, without legitimate reason, the appellant unlawfully exposed the complainant to an indecent video tape when she was under 12 years of age and in his care.
  2. [6]
    Counts 7, 8 and 11 alleged offences of rape of the complainant against s 349 of the Code as follows:

Count 7

On a date unknown between 31 December 2000 and 1 January 2002

 

At Logan

Count 8

On a date unknown between 31 December 2000 and 19 September 2002

 

At Logan

Count 11

On a date unknown between 31 December 2000 and 19 September 2002

 

At Loganholme

  1. [7]
    The appellant was sentenced on 17 November 2017.  Convictions were recorded for all offences of which he was found guilty.  For the Count 1 offence, he was imprisoned for a period of six years and two months.  A parole eligibility date at 20 August 2020 was set.  Shorter periods of imprisonment for the other offences were imposed.  They are to be served concurrently with the head sentence and have the same parole eligibility date as it.
  2. [8]
    Solicitors acting for the appellant filed a notice of appeal against his conviction and sentence on 11 December 2017.[1]  Some three days later, it was substituted by a notice of appeal against conviction only.[2]
  3. [9]
    The trial from which this appeal arises was a re-trial.  The appellant had been found guilty and was convicted of 13 offences (including that charged by Count 10 in the re-trial indictment) at a trial which concluded on 19 February 2016.  An appeal to this Court relating to directions given to the jury succeeded.  The convictions were quashed and a re-trial on all counts was ordered on 10 February 2017.[3]

Circumstances of the alleged offending

  1. [10]
    The complainant gave evidence before the jury.  She testified that the appellant and Z had resided in an address in Shoalhaven Avenue at Springwood.  She recalled visiting them when she was three years old.  The mother and Z would leave her with the appellant while they attended self-defence classes.[4]  The complainant stated that during one of those occasions, she was wearing a summer dress and her hair was in a bob.  She was looking at herself in the mirror in an area in the garage that had been converted into a “photo studio”.  The appellant lifted her dress and looked underneath it.[5]
  2. [11]
    The complainant’s mother and Z also testified in the prosecution case.  Her mother confirmed that the complainant would visit Z and the appellant at that address, usually on a Sunday, and that the appellant would take care of the complainant when she and Z took self-defence classes.[6]  Z confirmed the frequency of the visits.[7]
  3. [12]
    During 1996, the appellant and Z moved to a double-storey brick house in Cinderella Drive in Springwood.  There was a “photo lab” on the lower level and a shed in the backyard.  The complainant was then about six years old.  According to her evidence, they would visit the address, usually every second Sunday but sometimes every Sunday, with her mother and sometimes with her grandparents as well.[8]  This evidence was generally supported by evidence from the complainant’s mother and Z.[9]
  4. [13]
    The complainant testified that on one occasion, the appellant called her to go downstairs so that he could show her how photographs were developed.  He took her into an unlit room that was dark.  There, he removed her underwear and touched the outside of her vagina with his fingers.  It lasted for “no more than 10 minutes”.[10]  This evidence was adduced in support of Count 2.
  5. [14]
    Further, the complainant spoke of a second instance in the same room, within two months of the first.  The appellant took her to the room.  He placed her on the bench and then proceeded to lick her vagina with his tongue.  He used it to penetrate her vagina while rubbing the outside of it with his fingers.  This episode, too, lasted no more than 10 minutes.[11]  Her mother and Z were upstairs having coffee.[12]  This alleged offending was the basis of Count 3.
  6. [15]
    The complainant continued in her evidence in chief to say that the appellant had performed “oral sex” on her at the address.  She estimated that it occurred in excess of 50 times, “probably once or twice a week”.  Mostly it happened in the darkened room but occasionally it took place in a shed at the back where, the appellant said, he would show her his racing cars.[13]  The appellant told her she would get into trouble if she told anybody.[14]  This offending was not separately charged.  The prosecution case relied on it as further evidence in proof of the Count 1 offence.
  7. [16]
    In 1999, the appellant and Z moved to a single storey brick house in Timor Avenue at Loganholme shortly after their daughter was born.[15]  The complainant would visit that house with her family every second Sunday.[16]  She said that the appellant built a shed at the property for storage of stock for his business.  He would ask her mother for permission to take her there to help out with the stock.[17]  The complainant’s mother confirmed that the shed was completed very soon after the move to the Timor Avenue address[18] and that the appellant would ask for the complainant to assist him to “price frames” stored in the shed.[19]
  8. [17]
    The complainant testified that once she and the appellant were in the shed, he would lay her on her back, take off her underwear and perform “oral sex” on her by licking in and around her vagina while massaging the outside of it with his fingers.[20]  This happened more frequently, she said, after she turned 10 years of age[21] and “pretty much every single time (she) came over”, except when the appellant was away at weekend motorkhana championships.[22]
  9. [18]
    The complainant also gave evidence of another incident that occurred in the shed.  Her brother, L, who was then three years old, was also there.  The appellant asked them to take off their clothes.  She assisted her brother to do so.  Once they were both naked, the appellant asked her lie down.  He then placed L on top of her and told her that she and L were having sex.  He proceeded to take photographs of them.[23]  Later, the appellant invited the complainant to view the photographs.[24]  In cross examination, she said that this incident occurred in 2000.[25]  The Crown relied on this evidence in proof of Counts 4 and 5.
  10. [19]
    In her evidence in chief, the complainant also testified that the appellant had taken her to the rubbish tip at Mount Cotton on, maybe, seven occasions during 2001 and 2002.  She was then 11, nearly 12, years old.[26]  Her mother confirmed that the complainant went there with the appellant “at least half a dozen occasions”, he having first asked her if it was “okay” for the complainant to go with him for a drive to the dump.[27]
  11. [20]
    The complainant gave evidence about two of these trips.  She said that on the first of them, she was driven to a secluded spot where the appellant pulled down her underwear.  She was in a passenger seat at the time.  The appellant performed oral sex on her.  He also “stuck his pinky inside (her) vagina”, moving it in and out.  That took place for no more than five minutes.[28]  It ceased when another vehicle approached.[29]  This evidence was adduced in support of Counts 6 and 7.
  12. [21]
    As to the second of the trips, the complainant said that again the appellant drove to a secluded spot.  Again, she was in a passenger seat.  He performed oral sex on her.  He then returned to the driver’s seat, undid his pants and pulled out his penis.  He told her to treat it “like a lollipop” and that if she did not, he would tell her mother and she would get into trouble.[30]  The complainant then inserted the appellant’s penis into her mouth and performed oral sex on him.[31]  This was the evidence adduced in proof of Count 8.
  13. [22]
    About one week later, the complainant testified, the appellant asked her to assist him with stock.  He led her to a trailer in the shed.  He removed her clothes and performed oral sex on her.  He then undressed himself and asked her to perform oral sex on him.  She did.  He ejaculated and then cleaned himself up.  They dressed and continued to work on the stock.[32]  The prosecution case relied on this evidence in proof of Counts 9 and 11.
  14. [23]
    The complainant also gave evidence of an event that occurred one evening at the appellant’s business premises, a store at the Logan Hyperdome.  She was about 11 years old at the time.  She was helping the appellant unpack frames.  The complainant’s mother confirmed that the appellant had, on one occasion, asked her if the complainant could go with him to deliver some boxes of stock to the store and that she had agreed.[33]
  15. [24]
    According to the complainant, the appellant told her to lie on her back behind the counter of the store.  He removed her underwear, performed oral sex on her and “inserted his fingers”.  He stopped when he saw a security guard’s torchlight.  He told the complainant to hide behind the photo machine.[34]  In cross examination, the complainant accepted that she could not, at that stage, remember if any fingers had been inserted in her vagina on that occasion.[35]  The evidence of the oral sex offending was relied on in proof of Count 12.
  16. [25]
    The last offending of which the complainant gave evidence in chief occurred at the house at Timor Avenue.  Her mother and Z had gone to get fish and chips for lunch.  The appellant told her to enter the study.  There, he showed her a video of a 10 year old girl masturbating her vagina with her fingers.[36]  This was the evidence in support of Count 13.
  17. [26]
    In cross examination, the complainant recalled instances when the appellant had kissed her.[37]  In re-examination, she said that the appellant began kissing her on the lips once he and his family had moved to the Timor Avenue address.  It happened on numerous occasions.[38]
  18. [27]
    L gave evidence that he recalled attending the Timor Avenue residence when he was a young child.  It was mainly on Sundays.[39]  He remembered an occasion when he walked to the shed.  He was four years old at the time.  He entered and looked under a car in the shed.  He looked to his left and saw his sister lying on her back with no clothes on from the waist down.  Her legs were apart.  He saw the appellant lying on his front with his head between her legs and towards her groin.[40]  They did not see him and he just walked away.[41]
  19. [28]
    Both the complainant and L were cross examined in detail by defence counsel.  There was a focus upon perceived differences between their evidence in chief at this trial on the one hand, and their statements to police or evidence in chief at the first trial on the other.  The appellant did not give or call evidence.

The making of the complaint

  1. [29]
    The disclosure by the complainant to others of the alleged offending originated from her attendance at a family planning session at school when she was 12 years old.  She realised then that what the appellant was doing to her was wrong.  She hand-wrote a note to him and sticky taped it to his computer monitor one weekend when he was away at a motorkhana championship.[42]  The note, which was adduced in evidence at the trial,[43] read:

“Hey Uncle MCJ, I love you but I don’t think we should do the things we do anymore because I have committed my body to my boyfriend (named).  From (complainant)”.

  1. [30]
    According to the complainant, her mother found the note and asked her about it.  The mother’s evidence was that Z had drawn it to her attention sometime in 2002.[44]  Z confirmed that she discovered the note in 2002.[45]
  2. [31]
    The complainant gave evidence that when questioned by her mother about the note, she said that the appellant had exposed himself to her and shown her inappropriate material on the internet.  She chose not to disclose the other offending out of a fear that her mother, who was working for the appellant at the time, would lose her job.[46]  The complainant’s mother testified that the complainant also said she had not been comfortable with the things that the appellant had done and that he had shown her pornography on the internet and exposed himself to her.[47]
  3. [32]
    The complainant testified that after that disclosure, her mother stopped her visiting the appellant’s house.  Thereafter, she would visit only if he was not there.[48]
  4. [33]
    Next, the complainant spoke of an incident at Movieworld when she, her mother and Z, with others, were there at a family get-together.  She was 13 at the time.  When she and Z were waiting in line for a ride, Z asked her why she did not visit anymore when the appellant was at home.  In response, the complainant told her of “the abuse” and that “he’d performed cunnilingus on (her) and used his fingers inside (her)”.[49]  The complainant said that Z went quiet and did not speak of the matter again.[50]
  5. [34]
    According to the complainant, when she was 14, she received a phone call from police who asked her to provide a statement.  She declined to do so because she was scared.[51]  It was in April 2014 that she provided a statement to them.
  6. [35]
    The complainant’s mother gave evidence that sometime after the Movieworld visit, and in the January 2004 school holidays, she, Z and the complainant got together at the McDonald’s restaurant at Loganholme to discuss in more detail what the complainant had told Z at Movieworld.  According to her mother’s evidence, the complainant related the same things that she had told her mother before but “added oral sex on to that”.  The complainant referred to it then as “cunnilingus”.[52]
  7. [36]
    Z confirmed that the conversation with the complainant at Movieworld had occurred.  The complainant told her then that she had been sexually abused over a number of years by the appellant and that there was “cunnilingus”.[53]
  8. [37]
    Z also testified that in a later conversation in 2011, the complainant told her that there had been oral sex in the shed at the Timor Avenue address.[54]  Subsequently, she received an email from the complainant on 20 March 2014 in which the complainant set out a chronology of events concerning the appellant from 1995 to 1997.[55]  The contents of the email which allege sexual offending by the appellant, were read into evidence.[56]
  9. [38]
    Evidence was also given at the trial that on 2 April 2014, the complainant telephoned Detective Senior Constable A Cussens of the Morningside Child Protection Unit.  She said that she wished to report that she had been abused by her former uncle.[57]  A statement was taken from the complainant.  It was finalised on 24 April 2014.[58]

The grounds of appeal

  1. [39]
    The appellant represented himself at the hearing of the appeal.  He was given leave to amend his notice of appeal to incorporate seven further grounds of appeal.[59]  The grounds of appeal are as follows:
  1. The verdict is unreasonable or cannot be supported having regard to the whole of the evidence (“unsafe and unsatisfactory” verdict).
  2. A miscarriage of justice was occasioned by the learned trial judge failing to give an appropriate direction in regard to previous trial evidence.
  3. A miscarriage of justice was occasioned due to the trial judge failing to correctly, or at all, respond to a written request from the jury.  A further miscarriage of justice was occasioned when the jury were left to deliberate on an unresolved issue with respect to which the jury wished to have assistance.  The verdict was given without the assistance they sought.
  4. The conduct of the Crown prosecutor during evidence and in his addresses to the jury occasioned a miscarriage of justice – The prosecutor by his conduct: introduced by leading questions a sexual offence of a far more serious nature not appearing on the indictment.  In this trial’s atmosphere, this was not a prejudice that could be easily overcome: misled the jury about the capacity of the witness L’s evidence, and to the probative quality of the evidence given: misled the jury regarding dates relating to Counts 4 and 5: and, implicitly invited the jury to accept the complainant’s evidence unless there was some demonstrated motive to lie: and provided personal opinions on the meaning of the note (Exhibit 4).  (the emphasis is that of the appellant)
  5. A miscarriage of justice was occasioned when the trial judge failed to give directions and to correct the prosecutor’s suggestion to the jury that the complainant would not have a motive to lie.  A further miscarriage of justice was occasioned when the trial judge repeated the Crown prosecutor’s motive to lie remarks to the jury in her summing up.
  6. A miscarriage of justice was occasioned as a result of a failure by the trial judge to direct the jury that the note (Exhibit 4) was a piece of evidence independent of the complainant.
  7. A miscarriage of justice was occasioned as a result of permitting the jury to have the “laminated note” (Exhibit 4), a document admitted into evidence under Part 6 of the Evidence Act 1977 (Qld) with them during their deliberations, when the jury were likely to give the statements contained in the document undue weight and when the jury had not been directed to guard against giving the statements in the document disproportionate weight.
  8. A miscarriage of justice was occasioned as a result of a failure of the trial judge to have directed the jury in accordance with Section 102 of the Evidence Act 1977 (Qld).

The application to adduce further evidence

  1. [40]
    The appellant also applied for leave to adduce into evidence in the appeal the whole of the record book for his appeal against conviction at his first trial.  His apparent objective was to have before this Court the evidence that witnesses, particularly the complainant, gave at the first trial for the purpose of demonstrating inconsistencies and contradictions, as he perceived them to be, which are additional to those that were raised in cross examination with the respective witnesses at the second trial.  He would seek to rely on them in support of Ground 1.
  2. [41]
    I would refuse the application.  The record book of some 305 pages contains, if anything, very little of potential relevance to such an objective.  That aside, this Court ought not, in my view, venture to assess whether there is in fact any inconsistency or contradiction in any particular instance where the perceived inconsistency of contradiction was not put to the witness concerned at the second trial.
  3. [42]
    I now turn to consider each of the grounds of appeal in the order in which they are raised.

Ground 1

  1. [43]
    Appellant’s submissions: In his written Outline of Submissions, the appellant contended that the complainant’s evidence at the re-trial “displayed inadequacies and was tainted by contradictions, inconsistencies, recent inventions, changes in evidence between trials and by giving non responsive answers in anticipation of challenges” such that her credibility was “irreconcilably damaged”.  Her evidence, it was suggested, received “little support from other adult witnesses”.[60]  As a consequence, the appellant ultimately submitted, the verdicts of guilty were unreasonable and could not be supported having regard to the evidence.[61]
  2. [44]
    In support of his damning criticism of the complainant’s evidence, the appellant cited the following instances of what he characterised as recent inventions.[62]
    1. The complainant said in evidence at the second trial that she wrote the note on the back of an old calendar (rather than the calendar for 2002) and that the appellant kept a stock of old calendars on his office desk[63], whereas she had not mentioned that in her police statement.  That evidence, the appellant ventured, was an invention to overcome “a problem” of which she had learned after the first trial, namely, that the date on the calendar page on which the note was written, Wednesday 14 October, was not a date in 2002.
    2. The appellant said in her statement to police in 2014, and testified, that she told Z at Movieworld that the appellant had “used his fingers inside (her)”, whereas Z did not refer to the complainant having said that.  The appellant suggested that the complainant must have made that up in the interim.
    3. The complainant mentioned, for the first time, in evidence in chief in the second trial that the appellant had said that he would take her to the shed at the Cinderella Drive property to show her his racing cars and, in cross examination, that the appellant took five to 10 flash photographs of her and L in the naked pose.  These were, the appellant submitted, “significant important details”.  That they were not the subject of evidence in chief at the first trial suggested recent invention, he claimed.
  3. [45]
    With regard to inconsistencies, the appellant contended that, in her statement to police, the complainant had implied that offending took place on each of the trips to the Mount Cotton tip, whereas, in her evidence, she had said that she presently recalled it as having happened only twice.  As to when they would leave the Cinderella Drive property after visits, the complainant had said in her police statement that they almost always went home for dinner, whereas in her evidence at trial, she said that they often alternated between dinner and lunch at home.  Also, the appellant suggested that the complainant and L had given differing evidence about entry to, and the doors at, the shed at the Timor Avenue property and as to where they were photographed naked in the shed.  In addition, the appellant noted that, at the first trial, the complainant had said that he would “often” go to motorkhanas at the weekend, whereas at the second trial, she said that he would go there “sometimes”.  That was relevant, the appellant said, to his opportunity to offend.
  4. [46]
    Further, the appellant maintained that the complainant had told “incontrovertible lies”.  One instance was that photographs proved, and she conceded in cross examination, that there were occasions when she went to the Timor Avenue property after she had written the note, for family social occasions when the appellant must have been present.  Another instance was that whereas at the first trial, the appellant had said that the majority of the offending that occurred more than 50 times took place in the shed at the Cinderella Drive property, in the second trial, she said that it mostly happened in the darkened room at that property.
  5. [47]
    Lastly, the appellant referred to evidence that after 2002, both the complainant’s mother and father and her grandfather had purchased motor vehicles from the appellant.  It was improbable, he suggested that they would have continued to transact business with him after the reporting of sexual abuse.
  6. [48]
    Respondent’s submissions: The respondent submitted that the complainant’s evidence was coherent and graphic as to detail of the offending.  Her evidence as to location and opportunity to offend was supported by the evidence of other witnesses.  Moreover, the evidence of L corroborated her account that the appellant committed oral sex on her.
  7. [49]
    There was overall consistency, the respondent submitted, between the complaint evidence and her evidence at trial notwithstanding that she had not initially disclosed the most egregious aspects of the offending alleged.  As to the inconsistencies to which the appellant referred, they were acknowledged by the respondent who noted that they had been the subject of cross examination and were traversed in defence counsel’s address to the jury which had focused on the complainant’s reliability and credibility.  Contrary to defence counsel’s attack, those attributes of the complainant’s evidence were not significantly undermined by the inconsistencies, the respondent submitted.
  8. [50]
    The respondent also noted that the learned trial judge twice directed the jury to scrutinise the complainant’s evidence with great care before arriving at a conclusion of guilt.[64]
  9. [51]
    Discussion: I have set out in some detail the evidence of the complainant as to the separately charged acts the subject of Counts 2 to 9 and 11 to 13, and, as well, her evidence of other offending by the appellant relied on additionally in support of the Count 1 offence.  I have also referred to evidence of her mother, Z and L which was supportive of it.  I have done so bearing in mind the duty that this Court has to conduct an independent assessment of the evidence, both its sufficiency and quality, in order to determine whether upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty.[65]
  10. [52]
    Having considered that evidence, I conclude that the complainant gave sufficient evidence for findings that each of the charged offences occurred.  The reliability of her evidence gained support from evidence given by her mother and Z as to locations of the properties where the appellant resided and the timing of visits to them.  That evidence allowed a firm inference to be drawn that the appellant had opportunity to commit the offences when the complainant said he did.  The evidence of L corroborated her allegation of his offending in the manner in which she alleged.
  11. [53]
    Further support for the credibility of the complainant’s evidence is derived from the note that she wrote to the appellant once she appreciated that what he was doing was wrong and also from what she told her mother and Z after the note was discovered.  I conclude that the complainant’s evidence was of such a quality that it was open to the jury to have been satisfied beyond reasonable doubt of the appellant’s guilt.
  12. [54]
    In coming to that conclusion I have had regard to the observations recently made in the High Court of Australia in R v Baden-Clay[66] that to set aside a jury’s verdict as “unreasonable” within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be undertaken without particular regard for the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.
  13. [55]
    In this case, the complainant and other witnesses gave evidence before the jury.  Inconsistencies were drawn to the jury’s attention.  They were directed to scrutinise the complainant’s evidence with great care.  Guided by that direction, the jury were evidently of a view that the complainant’s evidence was credible, notwithstanding identified inconsistencies.  That, to my mind, is quite understandable.  Those inconsistencies went to relevantly peripheral matters that were not central to the appellant’s offending.
  14. [56]
    I would add that the appellant’s assertions of recent invention are unpersuasive.  The circumstances to which the appellant has alluded for each of them do not, to my mind, bespeak a contrived restructuring of the complainant’s account of the appellant’s conduct.  It is entirely plausible that the complainant was giving further elaboration of what occurred which supplemented, rather than contradicted, what she had already said.
  15. [57]
    Similar observations may be made with respect to the appellant’s allegations of incontrovertible lying by the complainant with respect to visits to the Timor Avenue property and to the location at the Cinderella Drive property where the repeat offending occurred.  There was some inconsistency in the complainant’s evidence on these two topics.  But it by no means follows that she must have been lying deliberately about them.
  16. [58]
    To say, as the appellant does, that the criticisms made by him irreconcilably damaged the complainant’s credibility is, in my view, quite unrealistic.  It is readily understandable why the jury did not think that those of them that were drawn to their attention had that effect.
  17. [59]
    For these reasons, I conclude that this ground of appeal has not been established.

Ground 2

  1. [60]
    Appellant’s submissions: The appellant’s submission is that the jury should have been directed on “how they should deliberate on their knowledge that there had been previous court proceedings”.[67]  The jury were not told in terms that there had been a previous trial.  However, the appellant relied on the following circumstances as necessitating the direction.  The complainant had been asked twice in cross examination whether she had previously given evidence.  When she agreed that she had, she was referred to what she had then said in evidence.[68]  In re-examination, the complainant confirmed that she had previously given evidence in February 2016.[69]  In the cross examination of L, he was asked if he had given sworn testimony on a previous occasion.[70]
  2. [61]
    The appellant placed additional reliance on the fact that the prosecutor had asked the complainant in evidence in chief whether she had ever consented to the appellant placing his penis in her vagina.[71]  None of the counts before the jury alleged offending in that manner.  In his address to the jury, the prosecutor said that there were two types of rape alleged in the case – the insertion by the appellant of his fingers in the complainant’s vagina and his requiring the complainant to perform oral sex on him.[72]  However, a little later, when speaking of whether she consented to giving the appellant oral sex, the prosecutor added “and while he inserted his penis into her vagina”.[73]  The appellant contended that the jury may have inferred from what the prosecutor said that the appellant had been charged with offending against the complainant by penile penetration of her vagina in an earlier trial.
  3. [62]
    Respondent’s submissions: The respondent submitted that the giving of a retrial direction is not mandatory in every retrial.  In the present case, there had not been any reference to a previous trial.  That the complainant and L had given sworn evidence previously was mentioned only briefly.  The focus of the cross examination was on written statements that had been made by the witnesses called in the Crown case.
  4. [63]
    As to the references made by the prosecutor to penile penetration of the complainant’s vagina, the risk that the jury might have drawn the inference for which the appellant contended was, the respondent submitted, countered not only by the prosecutor’s explanation to the jury that only two types of rape were alleged, but also by the clear direction given by the learned trial judge in the summing up that it was rape by insertion of the appellant’s fingers into the complainant’s vagina and insertion of his penis into her mouth that were alleged.[74]
  5. [64]
    Discussion: That some direction might be given to the jury were reference to be made in evidence to there having been a previous trial, was a matter that was raised with counsel twice during the trial; firstly, as the prosecutor was opening the case[75] and, secondly, in the course of cross examination of the complainant.[76]  However, no such direction was sought by counsel and none was given.
  6. [65]
    A question that arises is whether, notwithstanding that such a direction was not sought by defence counsel, a miscarriage of justice resulted from an absence of a direction about a previous trial.  In my view, it did not for the following reasons.
  7. [66]
    Firstly, the jury were not told directly that there had been a previous trial.  Secondly, the references to the complainant and L having previously given sworn evidence were not such as to have put into the jury’s minds the thought that there must have been a previous trial.  Thirdly, and in any event, the references were few, and little time was devoted to cross examination about what the complainant and L had said on such occasions.  The respondent is correct to say that the cross examination was centred upon what had been told by the witnesses to police and, in the complainant’s case, to complaint witnesses.
  8. [67]
    Fourthly, it is, I think, very unlikely that the jury would have speculated that because the prosecutor had referred to penile penetration of the complainant’s vagina twice, the appellant must have been charged with such offending at a previous trial.  In all likelihood, the clear directions given by the learned trial judge as to the two types of rape alleged caused the jury to relegate the references by the prosecutor to penile penetration of the complainant’s vagina to inadvertence on his part.
  9. [68]
    Finally, I note that the appellant has not supplemented his submissions by specifying what direction he contends ought to have been given in light of what the jury actually heard.
  10. [69]
    In absence of a demonstrated miscarriage of justice, this ground of appeal cannot succeed.

Ground 3

  1. [70]
    During their deliberations, the jury made a request by note “for (Z’s) conversation at McDonald’s with sister and (complainant)”.  When the jury returned, the learned trial judge explained to them that, out of an abundance of caution, all references by any of the witnesses to the conversation at McDonald’s would be located.[77]  Once the jury had retired, they then clarified their request by another note as follows: “… in relation to the McDonald’s incident, transcript of (Z’s) specific evidence through prosecutor and defence counsel questioning.  We specifically request this only – this section only.  We do not need other witnesses’ testimony which may refer to (Z).”[78]
  2. [71]
    In due course, the jury returned.  The learned trial judge read the reformulated request into the record in the presence of the jury.  She continued, saying that “the other thing I will just remind you is that (Z) is the only witness that gave evidence about any conversation at McDonald’s.  The complainant and the complainant’s mother did not give any evidence about conversations occurring at McDonald’s.”[79]
  3. [72]
    Her Honour’s associate then read from the transcript of the trial.[80] The prosecutor interrupted and drew attention to the fact that the evidence being read was evidence that had been given by the complainant’s mother about the meeting at McDonald’s.  He described that evidence as “the principal evidence” of the conversation at McDonald’s.[81]
  4. [73]
    Her Honour then sought and obtained confirmation from counsel that it was both the complainant’s mother and Z, but not the complainant, who had given evidence “in relation to McDonald’s”.[82]  Next, the associate read evidence that Z had given in cross examination concerning use by the complainant of the word “cunnilingus”.[83]
  5. [74]
    Appellant’s submissions: The appellant submitted that the learned trial judge’s response to the reformulated request was incorrect.  Her Honour should have informed them that Z had not given any evidence of a meeting at McDonald’s and that defence counsel had compounded the error by confirming that she had.  Further, the appellant submitted, the jury had been confused, firstly, by having had the evidence of the complainant’s mother concerning the McDonald’s meeting read to them and, secondly, by then having had Z’s evidence to them.[84]  A miscarriage of justice had resulted.[85]
  6. [75]
    Respondent’s submissions: The respondent acknowledged that the learned trial judge had erred in telling the jury that the complainant’s mother did not give evidence about a conversation at McDonald’s.  The error was corrected once the mother’s evidence was read out.  Z had been asked in cross examination whether the complainant had used the word “cunnilingus” in the meeting at McDonald’s.  That evidence also was read.
  7. [76]
    The jury would not have been left in any state of confusion, the respondent submitted.  No miscarriage of justice had occurred.
  8. [77]
    Discussion: I accept that the learned trial judge erred in what she initially told the jury as it concerned evidence by the complainant’s mother of the meeting at McDonald’s.  Further, to have read the mother’s evidence was not responsive to the jury’s reformulated request.  Notwithstanding, the error was corrected in front of the jury who must have been in no doubt, once the prosecutor intervened, that what had just been read was evidence given by the complainant’s mother and not by Z.
  9. [78]
    I do not accept, however, that the learned trial judge should have told the jury that Z gave no evidence relating to the meeting at McDonald’s.  Whilst she did not give evidence in chief concerning it, as I have noted, the meeting was raised with her in cross examination.  The jury would not have been confused by the reading of Z’s evidence or the inclusion in what was read of the evidence given by Z when she was questioned as to when it was that the complainant had spoken of the appellant having committed “cunnilingus” on her.
  10. [79]
    Accordingly, I am unpersuaded that a miscarriage of justice occurred on account of the matters referred to in this ground of appeal.

Ground 4

  1. [80]
    This ground of appeal seeks to impugn certain conduct on the part of the prosecutor which, the appellant submitted, caused a miscarriage of justice.  The first matter referred to is the referencing twice by the prosecutor to penile penetration of the complainant’s vagina.  For reasons which I have given in the discussion of Ground 2, I am not of the view that the making of those references occasioned a miscarriage of justice.  I now turn to the other matters.
  2. [81]
    Alleged misleading of the jury – L’s evidence: The contention here is that whereas the prosecutor told the jury in the opening that L would give evidence in relation to Counts 4 and 5, L did not, in fact, give evidence of the offending alleged in those counts.[86]  It was misleading for the prosecutor to have described the evidence that L would, and did, give of what he saw the appellant doing to the complainant in the shed as “relevant” to Counts 4 and 5.
  3. [82]
    I do not consider that the jury was misled in its deliberations by what was said by the prosecutor in the opening.  That is so because in his address, the prosecutor described the evidence that L did give as corroborative of the complainant’s evidence that the appellant had committed oral sex on her.[87]  That was undoubtedly so.  The prosecutor went on to tell the jury specifically that L had not given any evidence of an incident in which he was photographed on top of the complainant.[88] Furthermore, and importantly, in summing up, the learned trial judge reminded the jury that L had not given evidence of such an incident.[89]
  4. [83]
    Alleged misleading of the jury – dates: This allegation was centred upon a statement by the prosecutor in his address that the date for the Counts 4 and 5 offending was within the period from which L turned three years of age (on 25 April 2000) and 30 April 2001, by which time he had just turned four years of age.[90] That the statement was misleading was, the appellant suggested, because the period in which both offences were alleged in the indictment to have been committed was between 30 April 2000 and 1 July 2000.[91]
  5. [84]
    No objection was taken by defence counsel to what the prosecutor had said.  Presumably that was because defence counsel had not raised an issue by way of defence that was dependent upon the date on which the alleged photographing of the complainant and L had taken place.  The thrust of the cross examination was to question the complainant’s memory of the number of times the flashlight on the appellant’s camera went off during the photographing and why it was that she had omitted reference to that in her statement to police.[92]
  6. [85]
    Thus, the challenge was as to the reliability of the complainant’s evidence that the appellant placed L on her when they were both naked and proceeded to photograph them.  It follows, in my view, that the appellant was not disadvantaged in his defence of these counts by the timeframe to which the prosecutor referred in his address.
  7. [86]
    Motive to lie: The appellant’s proposition is that a miscarriage of justice was occasioned by a combination of an improper suggestion by the prosecutor that the complainant would not have had a motive to lie and a failure by the learned trial judge to correct the suggestion.  In contending that such a suggestion had been made, the appellant instanced the invitation made by the prosecutor in his address to “infer that (the complainant) was not someone who has come along to court with a concocted version about false events”[93] and that the complainant “would not have written those words unless they were true”[94] when referring to the words in the note.[95]
  8. [87]
    The difficulty for the appellant with this proposition is that the prosecutor did not explicitly or implicitly invite the jury to accept the complainant’s evidence unless there was some demonstrated motive to lie.[96]  As to the first instance given by the appellant, what the prosecutor said was linked to the complainant’s demeanour as a witness coping with retelling her account of the appellant’s abuse of her.  It was permissible for the prosecutor to have made the invitation he did within that context.
  9. [88]
    With regard to the words in the note, it was legitimately open to the prosecutor to make the statement about them that he did, given that, on its face, the note had been written for the appellant’s eyes only about conduct between them and that the defence had contended that what was said by the complainant had been fabricated.  Further, what the prosecutor said could not reasonably have given rise to impermissible reasoning on the part of the jury that they could be more easily satisfied beyond reasonable doubt that the complainant’s evidence was reliable because there was no evidence of any motive for her to have made up what was conveyed by those words.
  10. [89]
    Personal opinion: The appellant has submitted that the prosecutor, in his address, expressed personal opinion regarding the note which was not supported by evidence at trial.  Several examples of that were given in his written submissions.[97]
  11. [90]
    I do not propose to set out those examples or discuss them in any detail.  The appellant has mischaracterised what the prosecutor was doing.  He was not expressing personal opinions held by him.  To the contrary, he was advancing arguments in support of the plausibility and accuracy of what the complainant had written in the note.  It was legitimate for him to have done so.
  12. [91]
    It follows from these reasons that, in my view, this ground of appeal cannot succeed.

Ground 5

  1. [92]
    This ground of appeal repeats the contention made in Ground 4 that the prosecutor improperly suggested to the jury that the complainant would not have had a motive to lie.  As I have explained, no such suggestion was made.  This ground of appeal must therefore fail.

Grounds 6 and 7

  1. [93]
    It is convenient to consider these two grounds of appeal together.  They arise from the circumstances that the paper on which the complainant wrote the note, Exhibit 4, had been laminated by the complainant’s mother a few days after it had been found;[98] that the note was admitted into evidence pursuant to s 93A in Part 6 of the Evidence Act 1977 (Qld); and that the jury were permitted to have the note with them during their deliberations.
  2. [94]
    Appellant’s submissions: The appellant submitted that by reason of its laminate covering, the note had the appearance of evidence independent of the complainant’s oral testimony.  There was a risk that the directions given to the jury might have left them with the impression that the note itself was a piece of evidence independent of the complainant which proved the existence of an alleged physical relationship between them, whereas the note’s true evidentiary value was that it contained statements capable of justifying an inference that there had been a relationship between the complainant and the appellant of the kind referred to in it before the note was written.[99]  It was essential, the appellant submitted, that the jury have been disabused of that impression.  That a direction to that effect was not given had occasioned a miscarriage of justice.[100]
  3. [95]
    According to the appellant, a further miscarriage of justice occurred because the jury had not been directed to guard against giving the statements in the note disproportionate weight.  Such a direction ought to have been given or, alternatively, the note ought to have been withheld from the jury during their deliberations pursuant to s 99 of the Evidence Act.
  4. [96]
    Respondent’s submissions: The respondent submitted that the directions given to the jury did not leave them with the impression for which the appellant contended.  Those directions accorded with the analysis in the reasons for judgment of this Court in the first appeal of the note’s evidential character and with the directions that the Court suggested be given in respect of it in any retrial.
  5. [97]
    The respondent noted that defence counsel had cross examined in detail with respect to the provenance of the note which, in his address, he had described as “important for a couple of reasons”.[101]  He also addressed at length on the appearance of the note and its date structure.[102]  It was therefore necessary for the jury to inspect the note.
  6. [98]
    Further, the respondent submitted that there was no reason for the learned trial judge to have thought that undue weight might be given to the note so as to engage the discretion under s 99.  Defence counsel had not suggested that there was.  The note here is to be contrasted with the document in R v GAO[103] which had contained the substance of the allegations made by the complainant against the defendant in that case.
  7. [99]
    Discussion: At the first trial, the only direction given of any relevance to circumstantial evidence was the standard direction.  No direction was given as to the note’s character as circumstantial evidence only.  Nor was any direction given about the range of possible meanings of the words “the things we do” in the note.  It was held that those lapses in the directions had occasioned a miscarriage of justice.[104]
  8. [100]
    In contrast to that, at the retrial, the learned trial judge gave the following detailed instructions to the jury concerning the note:[105]

“Now, the prosecution says that you can also rely on the note that the complainant says she left for the defendant, and you’ll have this with you in the jury room.  Now, before you can rely on that note as evidence of maintaining a sexual relationship, I must give you some very important directions that you must follow.  So I’ll just remind you of what the note says:

Hey, Uncle MCJ.  I love you, but I don’t think we should do the things we do anymore because I have committed my body to my boyfriend, (named).  From (the complainant).

That note Exhibit 4.  Now, the complainant gave evidence that she left it attached to her uncle’s computer after she’d been to a talk on family planning at school some time in 2002 and she realised that what was happening was wrong.  And I’ll remind you that, under cross-examination, she said that it was in September 2002 that she would’ve left the note.

Now, the – as I say, the prosecution rely on the note as evidence to support proof of the charge – the maintaining charge.  Now, this is a piece of evidence which we call circumstantial evidence, okay, because it’s not direct evidence that anything was occurring.  Circumstantial evidence is evidence of circumstances which can be relied upon, not as proving a fact directly, but instead as pointing to its existence.  So it differs from direct evidence which tends to prove a fact directly.  Now, both direct and circumstantial evidence are to be considered by you.

So the first direction I give you is this: that before you can use this note as evidence of the nature of the relationship between the complainant and the defendant, it is necessary that you are satisfied that the note’s content was both truthful and reliable and not the product of imaginings or untruths or a set up or a prank.  You must also consider whether the note was actually intended to be a private communication between the complainant and the defendant back in 2002, or whether it was left by the complainant with the intention that it would be found by the complainant’s aunt or mother, or whether it was manufactured at a late date.

If you are not satisfied the note was a genuine, private communication by the complainant to the defendant, you should disregard it as evidence to support the complainant’s evidence.  Further, you would take that fact into account in considering the truthfulness and reliability of the complainant’s evidence generally and of what the note says.  Just as importantly, there is another step that you must follow.  If you are satisfied the note was genuine, you must next be satisfied of what the note was actually referring to when it said “the things we do”:

I don’t think we should do the things we do anymore because I have committed my body to my boyfriend.

Now, the prosecution says you would be satisfied the complainant’s reference in the note to “the things do” was a reference to physical sexual interaction between the defendant and the complainant, particularly because of the reference to “having committed my body to my boyfriend”.  I direct you that you must be satisfied that the only rational inference that can be drawn from the note is that the complainant’s reference in the note to “the things we do” was a reference to physical, sexual interaction between the defendant and the complainant.

Now, in order to be so satisfied, you must exclude any reasonable possibility that the words “the things we do” was not a reference to some lesser form of – I’ll start that again.  In order to be satisfied, you must exclude any reasonable possibility that the words “the things we do” was a reference to some lesser form of interaction, such as the defendant showing the complainant pornography or discussions about topics such as dildos.

Now, you have the evidence of the complainant that she told her mother back in 2002 when her mother confronted her about the note that the note was only a reference to the defendant showing her pornography.  You will also recall the complainant’s mother gave evidence that the complainant told her that she hadn’t been comfortable with things that MCJ had done and that he’d shown her pornography on the internet and that he’d exposed himself to her.  So if you cannot exclude other – those other types of possibilities, I direct you that you cannot use the note as evidence that a sexual relationship existed between the complainant and the defendant.  So you just put the note to one side.

Now, the other thing I have to tell you about the note is it’s not relevant to any of the other charges, only to the charge of maintaining a sexual relationship with a child, count 1, because the note does not refer to any specific episode, such as licking or rape or other forms of oral sex.  You can therefore only use the note, subject to those earlier directions I’ve given you, to support the complainant’s evidence that the defendant maintained a relationship – an unlawful sexual relationship with her, but, otherwise, the note will not be relevant to any of the other charges.”

  1. [101]
    These directions accorded with the reasoning of this Court in the first appeal.  They were accurate and complete.  They characterised the note as circumstantial evidence only and addressed the issues relevant to the words “the things we do”.  I reject the appellant’s submission that the directions left the jury with the impression that the note had an evidential status independent of the complainant or an evidential function other than as circumstantial evidence.
  2. [102]
    As well, it was appropriate for the jury to have had the opportunity to examine the note during their deliberations.  That was so in light of the attention given to its provenance and its physical characteristics during oral evidence and addresses.
  3. [103]
    I also reject the appellant’s contentions with respect to undue weight.  To my mind, there was no reason for the learned trial judge to have apprehended that the jury might give undue weight to the note in light of the directions that had been given by her regarding it.  No additional direction was required nor ought the discretion under s 99 have been triggered, in my view.
  4. [104]
    Accordingly, I conclude that these grounds of appeal have not been established.

Ground 8

  1. [105]
    This ground of appeal concerns the requirement in s 102 of the Evidence Act that, in this case, in estimating the weight to be attached to the contents of the note, regard needed to be had to all the circumstances relevant to the drawing of an inference as to their accuracy, including:  (a), the contemporaneity with the alleged offending; and (b), whether the complainant had any incentive to conceal or misrepresent the facts.
  2. [106]
    The appellant submitted that the jury were not directed as to (a) or (b).  There was a non-compliance with s 102 and a miscarriage of justice had resulted from that.
  3. [107]
    I do not accept that submission.  As to (a), contemporaneity, the learned trial judge referred the jury to the complainant’s evidence that she wrote the note when she realised that what was happening was wrong.  That evidence reconciled with the contents of the note itself, also read to the jury by her Honour, that referred, in the present tense, to “things we do”; and not to the things they had done in the past.  The possibility, notwithstanding that evidence, that the note might have been manufactured at a later date was mentioned.
  4. [108]
    As to (b), misrepresentation, the learned trial judge reminded the jury that it was necessary that they be satisfied that the contents of the note were “both truthful and reliable and not the product of imaginings or untruths or a set up or a prank”.  The possibility of fabrication was addressed.
  5. [109]
    In my view, the directions that were given adequately instructed the jury with respect to contemporaneity and misrepresentation.  They also informed the jury that the weight they were to attach to the note was to be derived from all the factors from which an inference as to weight might reasonably be drawn.  Clearly, there was no miscarriage of justice in this regard.
  6. [110]
    This ground of appeal, too, has not been established.

Disposition

  1. [111]
    No ground of appeal has succeeded.  The appeal must therefore be dismissed.

Order

  1. [112]
    I would propose the following orders:
    1. Application to adduce further evidence refused.
    2. Appeal dismissed.
  2. [113]
    McMURDO JA:  I agree with Gotterson JA.
  3. [114]
    MULLINS J:  I agree with Gotterson JA.

Footnotes

[1]  AB 383-384.

[2]  AB 385-386.

[3]  R v MCJ [2017] QCA 11.

[4]  AB 26 Tr 1-15 ll7-29.

[5]  AB 26 Tr 1-15 l43 – AB 27 Tr 1-16 l5.

[6]  AB 122 Tr 2-42 ll22-37.

[7]  AB 161 Tr 2-81 ll1-2.

[8]  AB 27 Tr 1-16 ll7-45.

[9]  AB 124 Tr 2-44 ll14-16 and AB 163 Tr 2-83 ll29-35.

[10]  AB 28 Tr 1-17 ll10-21.

[11]  AB 28 Tr 1-17 l37 – AB 29 Tr 1-18 l9.

[12]  AB 29 Tr 1-18 ll18-19.

[13]  AB 29 Tr 1-18 ll23-43.

[14]  AB 30 Tr 1-19 ll1-2.

[15]  Ibid ll10-18.  This evidence was confirmed by the complainant’s mother: AB 124 Tr 2-44 ll18-32.

[16]  AB 32 Tr 1-21 ll35-36.

[17]  Ibid ll38-44.

[18]  AB 126 Tr 2-46 ll1-2.

[19]  AB 127 Tr 2-47 ll11-25.

[20]  AB 32 Tr 1-21 ll38-44.

[21]  AB 33 Tr 1-22 ll3-4.

[22]  AB 41 Tr 1-30 ll15-20.

[23]  AB 33 Tr 1-22 ll30-45.

[24]  AB 34 Tr 1-23 ll26-30.

[25]  AB 98 Tr 2-18 ll23-24.

[26]  AB 37 Tr 1-26 ll12-18.

[27]  AB 128 Tr 2-48 ll28-45.

[28]  AB 37 Tr 1-26 ll30-46.

[29]  AB 38 Tr 1-27 ll1-2.

[30]  Ibid ll10-19.

[31]  Ibid ll21-23.

[32]  AB 39 Tr 1-28 ll10-40.

[33]  AB 128 Tr 2-48 ll7-20.

[34]  AB 40 Tr 1-29 ll4-19.

[35]  AB 98 Tr 2-18 ll43-44.

[36]  AB 41 Tr 1-30 ll1-10.

[37]  AB 57 Tr 1-46 ll41-46.

[38]  AB 116 Tr 2-36 ll1-11.

[39]  AB 145 Tr 2-65 ll1-8.

[40]  AB 146 Tr 2-66 ll32-42.

[41]  AB 147 Tr 2-67 ll11-12.

[42]  AB 41 Tr 1-30 l33 – AB 42 Tr 1-31 l20.

[43]  Exhibit 4: AB 367-368.

[44]  AB 129 Tr 2-49 ll9-12.

[45]  AB 175 Tr 2-95 ll25-36.

[46]  AB 42 Tr 1-31 ll28-33.

[47]  AB 129 Tr 2-49 ll35-38.

[48]  AB 42 Tr 1-31 ll35-39.

[49]  AB 42 Tr 1-31 l46 – AB 43 Tr 1-32 l7.

[50]  AB 43 Tr 1-32 ll8-10.

[51]  Ibid ll22-26.

[52]  AB 130 Tr 2-50 ll4-23.

[53]  AB 170 Tr 2-90 ll15-30.

[54]  AB 171 Tr 2-91 ll21-30.

[55]  Ibid ll36-46; MFI “M”: AB 381.

[56]  At AB 172 Tr 2-92 ll6-42.

[57]  AB 184 Tr 2-103 ll14-19.

[58]  Ibid ll21-29.

[59]  Appeal Transcript (“AT”) 1-2 ll34-35.

[60]  Appellant’s Outline of Submissions (“AOS”) page 1.

[61]  AOS paragraph 1.

[62]  AOS paragraph 7.

[63]  AB 105 Tr 2-25 ll24-26.

[64]  AB 305 ll1-21.

[65] M v The Queen (1994) 181 CLR 487 at 493 per Mason CJ, Deane, Dawson and Toohey JJ.

[66]  [2016] HCA 35; (2016) 258 CLR 308 at [65] per French CJ, Kiefel, Bell, Keane and Gordon JJ.

[67]  AOS paragraph 13.

[68]  AB 85 Tr 2-5 l27 – AB 86 Tr 2-6 l8.

[69]  AB 117 Tr 2-37 ll21-23.

[70]  AB 152 Tr 2-72 ll20-22.

[71]  AB 43 Tr 1-32 ll36-37.

[72]  AB 240 ll16-18.

[73]  Ibid ll35-39.

[74]  AB 291 ll16-45.

[75]  AB 14 Tr 1-3 ll10-15.

[76]  AB 82 Tr 2-2 ll4-25.

[77]  AB 325 ll28-31.

[78]  AB 328 l45 – AB 329 l2.

[79]  AB 329 ll4-7.

[80]  AB 329 l10 – AB 330 l32.

[81]  AB 330 l36 – AB 331 l1.

[82]  AB 331 ll5-24.

[83]  AB 331 l25 – AB 333 l36.

[84]  AOS paragraph 20.

[85]  AOS paragraph 22.

[86]  Transcript of Opening page 4 ll31-36.

[87]  AB 236 ll23-46.

[88]  AB 237 ll4-5.

[89]  AB 293 l5.

[90]  AB 239 ll16-18.

[91]  AOS paragraph 29.

[92]  AB 60 Tr1-49 ll24 – AB 61 Tr 1-50 l20.

[93]  AB 235 ll28-29.

[94]  AB 232 l12.

[95]  AOS paragraph 30.

[96]  Contrast R v Coss [2016] QCA 44 especially at [22].

[97]  AOS paragraph 32.

[98]  AB 129 Tr 2-49 ll17-27.

[99]  AOS paragraphs 42, 43.

[100]  Ibid paragraph 44.

[101]  AB 264 ll27-28.

[102]  AB 265-269.

[103]  [2012] QCA 54.

[104]  Reasons [89]-[97].

[105]  AB 296 l45 – AB 298 l27.

Close

Editorial Notes

  • Published Case Name:

    R v MCJ (No 2)

  • Shortened Case Name:

    R v MCJ (No 2)

  • MNC:

    [2019] QCA 174

  • Court:

    QCA

  • Judge(s):

    Gotterson JA, McMurdo JA, Mullins J

  • Date:

    06 Sep 2019

Litigation History

Event Citation or File Date Notes
Primary Judgment DC2582/17 (No Citation) 17 Nov 2017 Date of Conviction (McGinness DCJ).
Appeal Determined (QCA) [2019] QCA 174 06 Sep 2019 Application to adduce further evidence refused; appeal against conviction dismissed: Gotterson and McMurdo JJA and Mullins J.

Appeal Status

{solid} Appeal Determined (QCA)