R v B and P - [1998] QCA 45

IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND

[1998] QCA 045

C.A. No. 345 of 1997
C.A. No. 346 of 1997

Brisbane

[R v B & P]

T H E Q U E E N

B and P

(Applicants) Appellants
de Jersey CJ
Pincus JA
Muir J

Judgment delivered 20 March 1998

Separate reasons for judgment of each member of the Court; as to appeals against conviction in relation to count 5, de Jersey CJ dissenting; as to appeals against conviction in relation to count 4, Pincus JA dissenting.

APPEALS AGAINST CONVICTION DISMISSED IN RELATION TO COUNT 4 (PROCURING A CHILD TO ENGAGE IN CARNAL KNOWLEDGE). APPEALS AGAINST CONVICTION ALLOWED IN RELATION TO COUNT 5 (RAPE), THOSE CONVICTIONS QUASHED, NO ORDER FOR RETRIAL. APPLICATIONS FOR LEAVE TO APPEAL AGAINST SENTENCE IN RELATION TO COUNT 4 ALLOWED TO EXTENT OF ADDING RECOMMENDATION FOR CONSIDERATION OF ELIGIBILITY FOR PAROLE AFTER FOUR YEARS AND SIX MONTHS.

CATCHWORDS:	Conviction for procuring a child to engage in carnal knowledge, and rape (as aiders); whether direction on circumstantial evidence and as to knowledge aspect of aiding, required; whether proviso to s.668E applies; whether 12 years sentence manifestly excessive; judge's reference to prior misconduct.
Criminal Code ss 7, 217, 668E (1A) Evidence Act s.93A M v. The Queen (1994) 181 C.L.R. 487 K (C.A. No. 269 of 1993, 22 October 1993) R v. D [1996] 1 Qd.R. 363 Beck [1990] 1 Qd.R. 30 Giorgianni (1985) 156 C.L.R. 473 Yorke v. Lucas (1985) 158 C.L.R. 661 R v. M (C.A. No. 413 of 1994, 7 March 1994)
Counsel:	Mr B. Butler SC for the appellants Mr P. Ridgway for the respondent
Solicitors:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent
Hearing date:	5 November 1997
REASONS FOR JUDGMENT - de JERSEY CJ

Judgment delivered 20 March 1998

The appellants were tried, jointly with one S, on charges of procuring a child to engage in carnal knowledge, rape, and attempted anal intercourse. S was separately charged with two counts of rape and one of anal intercourse. The appellants and S were convicted on the charge of procuring and the charge of rape, and acquitted on the charge of attempted anal intercourse. On each of the two separate charges of rape, S was convicted of attempted rape. He was acquitted on the separate anal intercourse count.

The appellants appeal against their conviction for the offences of procuring and rape, which led to their being imprisoned for 12 years. Not all of the grounds specified in the notices of appeal were pursued before us on appeal. The grounds which were argued were that the convictions are unsafe and unsatisfactory, and, following amendment of the notice of appeal, that the learned judge erred in failing to direct the jury with respect to circumstantial evidence and additionally, but in the case of the rape charge only, on “the requirement of knowledge for there to be a conviction on the basis of aiding under s.7".

The…

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 and P

Details

AGLC: R v B and P [1998] QCA 45
Case: [1998] QCA 45
Decision Date: 20/03/1998

CaseChat Overview and Summary

In the case of R v B and P, the respondents were convicted for procuring a child to engage in carnal knowledge and for aiding and abetting the rape of that child. The trial judge sentenced both respondents to 12 years imprisonment. The respondents appealed against their convictions and sentences, raising several grounds, including the adequacy of the direction on the use of circumstantial evidence, the requirement for the jury to be directed on the knowledge aspect of aiding, whether a proviso to a particular section applied, the excessiveness of the sentence, and the judge's reference to prior misconduct. The appeal centred on the legal sufficiency of the evidence and the appropriateness of the sentence.

The primary legal issues the court needed to address were whether the trial judge erred in failing to properly direct the jury on the use of circumstantial evidence and the necessity for a specific direction on the knowledge aspect required for aiding. Additionally, the court had to determine if a proviso to a section applied, which could affect the interpretation of the charges. The excessiveness of the 12-year sentence was also scrutinised, along with the judge's reference to prior misconduct of the respondents, which might have improperly influenced the jury.

The court found that the trial judge did not err in the directions given to the jury, as the directions were sufficient for the jury to understand the use of circumstantial evidence and the knowledge required for aiding. The proviso to the section in question did not apply, as the circumstances did not meet the criteria outlined. Regarding the sentence, the court concluded that while the sentence was indeed severe, it was not manifestly excessive given the gravity of the offences. The reference to prior misconduct, although improper, did not prejudice the fairness of the trial. Consequently, the appeal was dismissed, and the convictions and sentences were upheld.

No specific orders were made beyond the dismissal of the appeal, leaving the convictions and sentences as originally determined by the trial judge intact. The court's reasoning confirmed the soundness of the trial process and the appropriateness of the sentences imposed.

Orders