R v B - [2003] QCA 459

SUPREME COURT OF QUEENSLAND

CITATION:

R v B [2003] QCA 459

PARTIES:

R
v
B
(appellant/applicant)

FILE NO/S:

CA No 126 of 2003
CA No 320 of 2003
DC No 187 of 2003
DC No 170 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction
Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

24 October 2003

DELIVERED AT:

Brisbane

HEARING DATE:

7 October 2003

JUDGES:

Davies JA and Jones and Holmes JJ
Separate reasons for judgment of each member of the Court, Davies JA and Jones J concurring as to the orders made, Holmes J dissenting

ORDER:

1. Appeal against convictions dismissed
2. Application for extension of time within which to appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - OTHER MATTERS - where appellant convicted of sexual offences against a young girl - where main evidence against appellant was that of the complainant - where second child gave evidence that appellant offended sexually against both herself and complainant - where complainant gave no evidence of these occasions - where learned trial judge did not warn jury against impermissibly using this evidence as indicative of a disposition to sexual impropriety with young girls - whether non-direction deprived appellant of a fair trial

BRS v R (1997) 191 CLR 275, distinguished

COUNSEL:

G P Lynham for appellant
M J Copley for respondent

SOLICITORS:

Spina Kyle Waldon Lawyers (Ingham) for appellant
Director of Public Prosecutions (Queensland) for respondent

DAVIES JA: The appellant was convicted after a trial of 11 sexual offences against a young girl then aged between seven and 10. He appeals against that conviction, the sole ground of appeal on which he now proceeds being that the failure of the learned trial judge to adequately direct the jury as to the use they might properly make of the evidence of AW deprived the appellant of a fair trial.

The offences occurred on five separate occasions. The first was the subject of counts 1 to 6 which involved digital penetration, oral sex of the complainant, masturbation of the appellant by the complainant and rape of the complainant. The second occasion which was the subject of count 7 involved masturbation of the appellant by the complainant. The third, the subject of count 8, also involved masturbation of the appellant. All of these occurred when the complainant, the appellant and other members of their family were residing at Purono Park.

The fourth occasion which was the subject of counts 9 and 10 involved digital penetration and the appellant rubbing his penis against the complainant from behind. The fifth which was the subject of count 11 involved the appellant rubbing his penis between the complainant's legs. All of these offences occurred when they were residing at Mutarnee.

The relationship between the appellant, who was aged between 22 and 25 at the time of the offences, and the complainant and other…

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 B

Details

AGLC: R v B [2003] QCA 459
Case: [2003] QCA 459
Decision Date: 24 October 2003

CaseChat Overview and Summary

The case before the court involved an appeal by the appellant against their convictions for sexual offences against a young girl. The primary evidence against the appellant was the testimony of the complainant. Additionally, a second child provided evidence that the appellant had sexually offended against both herself and the complainant. However, the complainant did not give evidence regarding these incidents. The appellant argued that the trial judge failed to warn the jury against using the evidence from the second child as indicative of a disposition to commit sexual offences against young girls, which deprived them of a fair trial.

The legal issues before the court were whether the trial judge's failure to warn the jury constituted a misdirection or non-direction that deprived the appellant of a fair trial. The court considered whether the evidence from the second child should have been excluded or if the jury should have been properly directed on its use. The appellant relied on the principle established in BRS v R, which held that uncorroborated evidence from a single complainant could not sustain a conviction unless there were other factors that made the evidence reliable.

The court found that the trial judge's failure to warn the jury constituted a misdirection. However, it concluded that the misdirection did not deprive the appellant of a fair trial. The court reasoned that the evidence from the complainant was clear and compelling, and the additional evidence from the second child did not significantly alter the outcome. Therefore, the court dismissed the appeal against the convictions. The court also dismissed the appellant's application for an extension of time to appeal against the sentence.

Orders

Orders of the court

1. Appeal against convictions dismissed

2. Application for extension of time within which to appeal against sentence 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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v B [2003] QCA 459
PARTIES:	R v B (appellant/applicant)
FILE NO/S:	CA No 126 of 2003 CA No 320 of 2003 DC No 187 of 2003 DC No 170 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction Application for Extension (Sentence)
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	24 October 2003
DELIVERED AT:	Brisbane
HEARING DATE:	7 October 2003
JUDGES:	Davies JA and Jones and Holmes JJ Separate reasons for judgment of each member of the Court, Davies JA and Jones J concurring as to the orders made, Holmes J dissenting
ORDER:	1. Appeal against convictions dismissed 2. Application for extension of time within which to appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - OTHER MATTERS - where appellant convicted of sexual offences against a young girl - where main evidence against appellant was that of the complainant - where second child gave evidence that appellant offended sexually against both herself and complainant - where complainant gave no evidence of these occasions - where learned trial judge did not warn jury against impermissibly using this evidence as indicative of a disposition to sexual impropriety with young girls - whether non-direction deprived appellant of a fair trial BRS v R (1997) 191 CLR 275, distinguished
COUNSEL:	G P Lynham for appellant M J Copley for respondent
SOLICITORS:	Spina Kyle Waldon Lawyers (Ingham) for appellant Director of Public Prosecutions (Queensland) for respondent