R v B

Case [2003] QCA 105 14 March 2003

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SUPREME COURT OF QUEENSLAND

CITATION:

R v B [2003] QCA 105

PARTIES:

R
v
B
(appellant/applicant)

FILE NO/S:

CA No 336 of 2002
DC No 7 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

14 March 2003

DELIVERED AT:

Brisbane

HEARING DATE:

28 February 2003

JUDGES:

McMurdo P, Davies JA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.    Appeal against conviction dismissed
2.    Application for leave to appeal against sentence       granted
3.    Appeal against sentence allowed
4.    Set aside the sentences imposed on each of counts 1       and 4 and in each case substitute a sentence of 12       months imprisonment

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - where evidence of conversation between appellant and neighbour admitted - whether there was a danger that the jury would reason from this that the appellant was the kind of person who would commit the offences charged and therefore be more likely to have committed them - whether trial judge should have given a warning about the danger of such propensity reasoning

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE APPEAL DISMISSED - where appellant argued that he was asleep at the time of the incident and thought he was touching his wife - whether jury were entitled to exclude as a reasonably possible explanation for his conduct that the appellant thought the complainant was his wife

CRIMINAL LAW - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENCE - where appellant sentenced to 18 months imprisonment - where appellant stepfather of the complainant - where offence was at the lower end of the scale of offences of this nature - whether sentence was manifestly excessive

Criminal Code 1899 (Qld), s 23, s 24

R v Larson; ex parte Attorney General [1998] QCA 468; CA No 373 of 1998, 3 December 1998, considered

R v Schirmer [1995] QCA 242; CA No 84 of 1995, 26 April 1995, considered

R v Sivell [1999] QCA 506; CA No 341 of 1999, 3 December 1999, considered

R v W [2000] QCA 321; CA No 141 of 2000, 8 August 2000, considered

COUNSEL:

P J Callaghan for appellant/applicant
M J Copley for respondent

SOLICITORS:

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

McMURDO P: I agree with the reasons for judgment of Davies JA but for the following observations as to the appellant's claim that the evidence in respect of count 1 was unsafe and unsatisfactory because the prosecution could not negative the defences of accident (s 23, Criminal Code) and honest and reasonable mistake (s 24, Criminal Code).

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 105
Case: [2003] QCA 105
Decision Date: 14 March 2003

CaseChat Overview and Summary

In this case, the appellant, who was the stepfather of the complainant, was convicted of two counts of indecent assault and two counts of sexual assault. The appeal against the conviction and sentence was heard by the Queensland Court of Appeal. The appellant argued that the trial judge had erred by admitting evidence of a conversation between the appellant and his neighbour, and by not warning the jury about the dangers of propensity reasoning. The appellant also argued that the jury should have considered that he was asleep at the time of the incident and thought he was touching his wife, and that the sentence was manifestly excessive.

The court considered whether the trial judge erred by admitting evidence of the conversation between the appellant and his neighbour, and whether the trial judge should have given a warning about the danger of propensity reasoning. The court held that the evidence was properly admitted as it was relevant to the appellant's state of mind, and that there was no error in the trial judge's failure to give a warning about propensity reasoning. The court also considered whether the jury were entitled to exclude as a reasonably possible explanation for the appellant's conduct that he thought the complainant was his wife. The court held that this was a matter for the jury to determine and that they were entitled to reject the appellant's explanation if they thought it was not reasonably possible.

The court also considered whether the sentence was manifestly excessive. The court held that the sentence was not manifestly excessive, as the offences were at the lower end of the scale of offences of this nature and the appellant was the stepfather of the complainant. However, the court found that the sentence was nonetheless excessive in light of the appellant's age, health, and other personal circumstances.

The appeal against conviction was dismissed, but the application for leave to appeal against sentence was granted. The appeal against sentence was allowed and the sentences imposed on each of counts 1 and 4 were set aside and substituted with a sentence of 12 months imprisonment.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence granted

3. Appeal against sentence allowed

4. Set aside the sentences imposed on each of counts 1 and 4 and in each case substitute a sentence of 12 months imprisonment

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

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Actions

Citations

R v B [2003] QCA 105

Most Recent Citation

R v D'Arcy [2003] QCA 124

Cases Citing This Decision

R v Hcu [2025] QCA 59
Citation 1 (Para 22)

…The appellant particularly relied on the cases of R v B ,[17] R v W [18] and R v T [19] to support the sentence imposed. [17][2003] QCA 105. [18][2000] QCA 321. [19][1996] QCA 45.…
R v BCY [2015] QCA 200
Citation 2 (Para 26)

…tted that his sentence should be suspended immediately, primarily because of the delay, and his rehabilitation. [23][2014] QCA 285, at [18]-[20]. [24][2003] QCA 105. [25][2000] QCA 321. [26][2009] QCA 22.…
R v MBZ [2014] QCA 18
Citation 3 (Para 1)

…d submissions on his behalf. Furthermore, those submissions did include reference to two decisions of this Court.[2] [2] R v YD [2002] QCA 489; R v B [2003] QCA 105. For completeness I note that the applicant did not refer to any additional cases in his submissions.…
R v CBI [2013] QCA 186
Citation 4 (Para 1)

…The respondent referred to R v D [2002] QCA 445, GAF v QPS [2008] QCA 190, and R v B [2003] QCA 105. In D , a sentence of six months imprisonment imposed after a trial was held to be within the sentencing discretion. That offender was the uncle of the complainant child who was about eight years old. He indecently…
R v Brackenrig [2010] QCA 41
Citation 5 (Para 1)

…appeal should be granted, the appeal allowed and a sentence of 12 months imprisonment suspended after three months substituted. [1][2003] QCA 556. [2][2003] QCA 105. [3](1998) 164 CLR 465, 477-478.…
R v NH [2006] QCA 476
Citation 6 (Para 1)

…ory. The special relationship of trust between father and daughter was, of course, a very significant factor. [2][2005] QCA 36. [3][2004] QCA 329. [4][2003] QCA 105. [5][2000] QCA 321.…
R v Mao; ex parte [2006] QCA 99
Citation 7 (Para 1)

…pend at least six months in actual custody. Cases of sentencing following trial (eg R v YD [2002] QCA 489, CA No 186 of 2002; 15 November 2002, R v B [2003] QCA 105, CA No 336 of 2002; 14 March 2003, R v Richardson [2000] QCA 166, CA No 18 of 2000; 8 May 2000, R v Watson [1996] QCA 337, CA No 255 of 1996; 27 Augu…
R v Go; ex parte A-G (Qld) [2004] QCA 453
Citation 8 (Para 1)

…judgment commented upon the impact the offences had on the complainant but there was no specific reference to rehabilitation for the offender. [24][2003] QCA 105…
R v ND [2003] QCA 505
Citation 9 (Para 1)

…s unsafe. His submission by reference to this evidence was in reliance upon the judgment of Davies JA (with whom Philippides J agreed) in R v B [2003] QCA 105 at [33], although that is apparently inconsistent with the judgment of Callinan J (with whom Kirby J relevantly agreed) in Dyers v R (2002) 210 CLR 285 whe…
R v D [2003] QCA 150
Citation 10 (Para 1)

…rting the complainant's evidence.[1] It was, however, excluded and it must be ignored for present purposes. [1]See R v Sakail [1993] 1 QdR 312; R v B [2003] QCA 105, CA No 336 of 2002, 14 March 2003, [19]-[22].…
R v D'Arcy [2003] QCA 124
Citation 11 (Para 1)

…d the complainant of sexual gratification by the appellant.[4] This ground of appeal therefore must also fail. [4] R v Massey [1997] 1 QdR 403; R v B [2003] QCA 105; CA No 336 of 2002, 14 March 2003. See also R v Knuth , [1998] QCA 161; CA No 64 of 1998, 23 June 1998.…

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Cases Cited

KRM v The Queen [2001] HCA 11
Citation 1 (Para 1)

…but by no means all,[1] it may be necessary to ensure, by appropriate directions, that the jury does not so impermissibly reason. [1] KRM v The Queen (2001) 206 CLR 221 was a case of the kind where it was held by the majority that such a direction was not necessary.…
R v W [2000] QCA 321
Citation 2 (Para 1)

…In my opinion the authorities referred to of R v W [2000] QCA 321; CA No 141 of 2000, 8 August 2000, R v Larson; ex parte Attorney-General [1998] QCA 468; CA No 373 of 1998, 3 December 1998, R v Sivell [1999] QCA 506; CA No 341 of 1999, 3 December 1999 and R v Schirmer [1995] QCA 242; CA No 84 of 1995, 26 April 1…
R v Sivell [1999] QCA 506
Citation 3 (Para 1)

…2000] QCA 321; CA No 141 of 2000, 8 August 2000, R v Larson; ex parte Attorney-General [1998] QCA 468; CA No 373 of 1998, 3 December 1998, R v Sivell [1999] QCA 506; CA No 341 of 1999, 3 December 1999 and R v Schirmer [1995] QCA 242; CA No 84 of 1995, 26 April 1995, whilst none of them is closely comparable to th…
R v. L; Ex Parte Attorney-General [1998] QCA 468
Citation 4 (Para 1)

…In my opinion the authorities referred to of R v W [2000] QCA 321; CA No 141 of 2000, 8 August 2000, R v Larson; ex parte Attorney-General [1998] QCA 468; CA No 373 of 1998, 3 December 1998, R v Sivell [1999] QCA 506; CA No 341 of 1999, 3 December 1999 and R v Schirmer [1995] QCA 242; CA No 84 of 1995, 26 April 1…
R v Schirmer [1995] QCA 242
Citation 5 (Para 1)

…e Attorney-General [1998] QCA 468; CA No 373 of 1998, 3 December 1998, R v Sivell [1999] QCA 506; CA No 341 of 1999, 3 December 1999 and R v Schirmer [1995] QCA 242; CA No 84 of 1995, 26 April 1995, whilst none of them is closely comparable to this, nevertheless when compared to this case, show that an appropriat…

Legislation Cited

No legislation cited in this judgment.

CITATION:	R v B [2003] QCA 105
PARTIES:	R v B (appellant/applicant)
FILE NO/S:	CA No 336 of 2002 DC No 7 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	14 March 2003
DELIVERED AT:	Brisbane
HEARING DATE:	28 February 2003
JUDGES:	McMurdo P, Davies JA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal against conviction dismissed 2. Application for leave to appeal against sentence granted 3. Appeal against sentence allowed 4. Set aside the sentences imposed on each of counts 1 and 4 and in each case substitute a sentence of 12 months imprisonment
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - where evidence of conversation between appellant and neighbour admitted - whether there was a danger that the jury would reason from this that the appellant was the kind of person who would commit the offences charged and therefore be more likely to have committed them - whether trial judge should have given a warning about the danger of such propensity reasoning CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE APPEAL DISMISSED - where appellant argued that he was asleep at the time of the incident and thought he was touching his wife - whether jury were entitled to exclude as a reasonably possible explanation for his conduct that the appellant thought the complainant was his wife CRIMINAL LAW - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENCE - where appellant sentenced to 18 months imprisonment - where appellant stepfather of the complainant - where offence was at the lower end of the scale of offences of this nature - whether sentence was manifestly excessive Criminal Code 1899 (Qld), s 23, s 24 R v Larson; ex parte Attorney General [1998] QCA 468; CA No 373 of 1998, 3 December 1998, considered R v Schirmer [1995] QCA 242; CA No 84 of 1995, 26 April 1995, considered R v Sivell [1999] QCA 506; CA No 341 of 1999, 3 December 1999, considered R v W [2000] QCA 321; CA No 141 of 2000, 8 August 2000, considered
COUNSEL:	P J Callaghan for appellant/applicant M J Copley for respondent
SOLICITORS:	Legal Aid Queensland for appellant/applicant Director of Public Prosecutions (Queensland) for respondent