BQ v R

Case [2023] NSWCCA 34 3 March 2023

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: BQ v R [2023] NSWCCA 34
Hearing dates: 25 November 2022
Decision date: 03 March 2023
Before: Davies J; McNaughton J; R A Hulme AJ
Decision:
(1) Extend time for the filing of the notice of appeal to 16 May 2022.
(2) Refuse leave to appeal in respect of Ground 2C pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).
(3) Grant leave to appeal in respect of Grounds 1 and 2B and allow the appeal in part.
(4) Quash the conviction on Count 8 and pursuant to s 7(2) of the Criminal Appeal Act 1912 (NSW) substitute a verdict of guilty of indecent assault upon a person under the age of 16 years contrary to s 61M(2) of the Crimes Act 1900 (NSW).
(5) Quash the conviction on Count 11 and enter a verdict of acquittal.
(6) Quash the aggregate sentence imposed in the District Court on 30 November 2018.
(7) Pursuant to s 12(2) of the Criminal Appeal Act 1912 (NSW), remit the matter to the District Court for re-sentencing in respect of the convictions on Counts 1, 2, 3, 4, 7, 8, 9 and 10.
(8) List the matter for mention in the District Court at Sydney on 10 March 2023 at 9.30am.

Catchwords:
CRIME — appeals — appeal against conviction — child sexual assault – where complainants were the applicant’s nieces – whether verdict unreasonable in respect of counts 1, 8, 9, 10 and 11 – open to jury to return guilty verdicts in respect of counts 1, 9 and 10 – reasonable doubt as to whether penetrative act occurred for count 8 – expressions “in” and “on” used interchangeably by complainant – reasonable doubt as to whether incident in count 11 occurred – confusion regarding presence of applicant where incident alleged to have occurred – ground of appeal allowed in part
EVIDENCE – the opinion rule – exceptions – expert evidence – whether miscarriage of justice on account of expert evidence as to responses of child victims of sexual assault – evidence given within bounds of expertise – ground of appeal dismissed
APPEALS — from jury verdict — nondirection – whether jury directions regarding expert evidence gave rise to a miscarriage of justice – absence of request for directions at trial – no requirement in the circumstances of the case to warn the jury on how expert evidence could not be used – leave to raise ground of appeal refused
APPEALS — orders on appeal — substituted judgment or orders – substitution of conviction for indecent assault upon child upon quashing conviction for sexual intercourse with child – quashing aggregate sentence – remitting to District Court for resentencing

Legislation Cited:
Crimes Act 1900 (NSW), ss 61H, 61M
Crimes Amendment (Sexual Offences) Act 2008 (NSW)
Criminal Appeal Act 1912 (NSW), ss 6(1), 7(2), 12(2)
Criminal Procedure Act 1986 (NSW), s 294
Evidence Act 1995 (NSW), ss 38, 79, 108C, 165B

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 BQ v R

Details

AGLC: BQ v R [2023] NSWCCA 34
Case: [2023] NSWCCA 34
Decision Date: 03 March 2023

CaseChat Overview and Summary

The case of BQ v R involved an appeal against conviction by the respondent, who was found guilty of multiple counts of child sexual assault, including sexual intercourse with a child and indecent assault. The complainants were the applicant's nieces, and the appeal concerned the reasonableness of the verdicts on certain counts and the use of expert evidence. The appeal was heard in the court of appeal. The legal issues before the court included whether the verdicts on counts 1, 8, 9, 10, and 11 were unreasonable, whether there was a miscarriage of justice due to expert evidence, and whether the jury directions regarding expert evidence were adequate.

The court determined that the verdicts on counts 1, 9, and 10 were open to the jury, as the evidence supported a finding of guilt. However, regarding count 8, the court found a reasonable doubt due to the complainant's interchangeable use of the terms "in" and "on," which led to ambiguity about whether a penetrative act occurred. As for count 11, there was confusion regarding the respondent's presence during the alleged incident, leading to a reasonable doubt about whether the incident occurred as alleged. Consequently, the court allowed the ground of appeal in part, quashing the convictions on counts 8 and 11. The court also dismissed the ground of appeal regarding the expert evidence, finding that it was within the bounds of the expert's expertise and did not result in a miscarriage of justice. Furthermore, the court refused leave to raise the ground of appeal regarding jury directions on expert evidence, as there was no requirement to warn the jury about the limitations of using expert evidence in this case.

The final orders included substituting the conviction for indecent assault upon a child for the quashed conviction of sexual intercourse with a child, and remitting the matter to the District Court for resentencing. The court also quashed the aggregate sentence, allowing for a new sentencing hearing to be conducted. This outcome reflected the court's careful consideration of the evidence and legal principles involved in the appeal.

Orders