D C Shepherd with J Lodziak for the appellant (instructed by Legal Aid Queensland)
A W Moynihan QC with C M Kelly for the respondent (instructed by Director of Public Prosecutions (Qld))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
BCM v The Queen
Criminal law – Appeal – Appeal against conviction – Whether verdict unreasonable or unsupported having regard to evidence – Indecent dealing with child under 12 years – Inconsistencies in evidence of child complainant – Whether inconsistencies affected reliability – Whether inconsistencies went to essential features of complainant's account of offences.
Criminal law – Reasons – Whether Court of Appeal gave sufficient reasons – Whether Court of Appeal's reasons disclosed assessment of capacity of evidence to support verdict – Obligation to give reasons not discharged by observation that jury entitled to accept evidence of complainant.
Words and phrases – "unsafe and unsatisfactory", "verdict cannot be supported having regard to the evidence", "verdict is unreasonable".
Criminal Code (Q), ss 210, 668E(1).
HAYNE, CRENNAN, KIEFEL, BELL AND KEANE JJ. After a trial in the District Court of Queensland (Long DCJ), the appellant was convicted of two counts of unlawfully and indecently dealing with E, a child under 12 years, who was for the time being under his care[1]. The jury was unable to agree on a third count of indecently dealing with E.
[1]Criminal Code (Q), s 210(1)(a), (3) and (4).
The appellant appealed unsuccessfully to the Queensland Court of Appeal (de Jersey CJ, Muir and White JJA), contending that the verdicts are "unsafe and unsatisfactory".
The appellant appeals by special leave granted on 6 June 2013 on two grounds. The first ground contends that the Court of Appeal failed to assess the evidence and to give adequate reasons for its conclusion that the verdicts were supported by the evidence. The second ground contends that the Court of Appeal erred in failing to conclude that the verdicts are unreasonable and unsupported by the evidence. As will appear, whatever criticisms may be made of the sufficiency of the Court of Appeal's analysis, the conclusion that the verdicts should not be set aside was correct. It follows that the appeal must be dismissed.
The factual background
E was six years old at the date of the offences. E viewed the appellant and his wife as her grandparents. Her stepfather is the appellant's stepson[2]. The three offences were alleged to have occurred on the one occasion when E was having a "sleepover" at the appellant's home. They were particularised as occurring between 30 September 2008 and 1 December 2008.
[2]According to the Court of Appeal, the appellant's stepson is E's own father. In E's interview with…
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.
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Details
AGLC
BCM v The Queen [2013] HCA 48
Case
[2013] HCA 48
Decision Date
CaseChat Overview and Summary
The appellant, BCM, appealed to the High Court of Australia against a decision of the Court of Appeal which had upheld his convictions for indecent dealing with a child under 12 years. The prosecution's case relied entirely on the evidence of the child complainant, E, who was six years old at the time of the alleged offences. The appeal raised questions concerning the reasonableness and evidentiary support for the jury's verdicts, and the adequacy of the Court of Appeal's reasons in assessing the complainant's evidence.
The High Court was required to determine whether the Court of Appeal had erred in failing to adequately assess the evidence and provide sufficient reasons for its conclusion that the verdicts were supported by the evidence. Furthermore, the Court had to consider whether the Court of Appeal was correct in not concluding that the verdicts were unreasonable or unsupported by the evidence, particularly in light of inconsistencies in the complainant's account.
The High Court acknowledged that while criticisms could be made of the Court of Appeal's analysis, its ultimate conclusion that the verdicts should not be set aside was correct. The Court reasoned that inconsistencies in a child complainant's evidence do not automatically render a verdict unsafe or unsatisfactory, provided those inconsistencies do not go to the essential features of the account of the offences. The Court found that the jury was entitled to accept the complainant's evidence, and the Court of Appeal's reasons, though perhaps brief, did not demonstrate an error in law.
Consequently, the High Court dismissed the appeal.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
The appellant appeals by special leave granted on 6 June 2013 on two grounds. The first ground contends that the Court of Appeal failed to assess the evidence and to give adequate reasons for its conclusion that the verdicts were supported by the evidence. The second ground contends that the Court of Appeal erred in failing to conclude that the verdicts are unreasonable and unsupported by the evidence. As will appear, whatever criticisms may be made of the sufficiency of the Court of Appeal's analysis, the conclusion that the verdicts should not be set aside was correct. It follows that the appeal must be dismissed.The factual background E was six years old at the date of the offences. E viewed the appellant and his wife as her grandparents. Her stepfather is the appellant's stepson[2]. The three offences were alleged to have occurred on the one occasion when E was having a "sleepover" at the appellant's home. They were particularised as occurring between 30 September 2008 and 1 December 2008. [2]According to the Court of Appeal, the appellant's stepson is E's own father. In E's interview with Detective Enright, however, E notes that her mother's husband is her stepfather. E's interview is consistent with her mother's evidence at trial that the appellant is her husband's stepfather and that she first met him in 2007, the year she married her husband. The prosecution case was wholly dependent on E's evidence. E's first complaint was made to her mother when she was nine years old. It concerned the indecent dealings charged in the first two counts. The following day E was interviewed by Detective Enright about these offences. The interview, which took place on 26 April 2011, was video-recorded. In March 2012, when E was 10 years old, she told her mother about a further indecent dealing that had occurred on the occasion of the sleepover at the appellant's home. E participated in a second interview with Detective Enright about this alleged offence. The video recordings of the two interviews were in evidence at the trial[3]. E's evidence was pre-recorded and admitted pursuant to the provisions of ss 21AK and 21AM of the Evidence Act 1977 (Q). She was 10 years old at the date of giving evidence. [3]Evidence Act 1977 (Q), s 93A. The complaint E's mother gave evidence of E's complaint. One evening at E's bedtime she had asked to talk to her mother privately. She volunteered that "Poppy touched me down there". In response to questioning, E said that the appellant had tickled her "down there". He had not tickled her anywhere else. His hand was underneath her underpants. The mother asked if this had happened at any other time and E replied "yes, it had happened again the next day when Nana ... had gone out". On this occasion E said that she told the appellant that she needed to go to the toilet because she did not want the tickling to continue. E said that these incidents had occurred on a sleepover "near Poppy's birthday ‑ surprise birthday party". She had a nightmare and she had gone into her grandparents' bedroom for comfort. She had snuggled up to the appellant and had awoken during the night to find him touching her. The first police interview
Evidence
Evidence Before The Court
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Decision
Reasons for decision
HAYNE, CRENNAN, KIEFEL, BELL AND KEANE JJ
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Ratio Decidendi
Legal Principle Established
Established by:
HAYNE, CRENNAN, KIEFEL, BELL AND KEANE JJ