R v BAS

Case [2005] QCA 97 8 April 2005

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SUPREME COURT OF QUEENSLAND

CITATION:

R v BAS [2005] QCA 97

PARTIES:

R
v
BAS
(appellant)

R
v
BAS
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 212 of 2004
CA No 249 of 2004
DC No 487 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction
Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

8 April 2005

DELIVERED AT:

Brisbane

HEARING DATE:

29 October 2004

JUDGES:

Davies and McPherson JJA and Fryberg J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. CA No 212 of 2004 dismissed
2. CA No 249 of 2004 dismissed

CATCHWORDS:

CRIMINAL LAW – Appeal and new trial and inquiry after conviction – Particular grounds – Unreasonable or insupportable verdict – Where appeal dismissed – Where appellant convicted of multiple indecent dealing, sexual assault and rape counts – Where all complainants consented to acts committed by appellant – Where consent obtained by fraud – Whether it was reasonably open to the jury to conclude the appellant’s purpose was for self gratification and not therapeutic purposes

CRIMINAL LAW – Appeal and new trial and inquiry after conviction – Particular grounds – Unreasonable or insupportable verdicts – Where appeal dismissed – Indecent dealing – Where indecency arises not simply from the identity of the part of the subject’s anatomy touched, but also from the appellant’s purpose in touching them – Whether jury reasonably entitled to find indecency on the whole of the evidence

CRIMINAL LAW – Appeal and new trial and inquiry after conviction – Objections and points not raised in court below – Misdirection and non-direction – Particular cases – Appellant made implied representations as to the purpose of his conduct – Where defence counsel made no requests for particulars identifying such representations – Where defence case accepted the complainants believed the appellant was acting for therapeutic purposes – Whether it was reasonably possible that failure to direct the jury in such circumstances may have affected the verdict

CRIMINAL LAW – Appeal and new trial and inquiry after conviction – Appeal by Attorney-General or other Crown law officer – Applications to increase sentence – Offences against the person – Digital rape – Where sentence not manifestly insufficient

R v Austerberry, unreported, DC No 664 of 2003, 6 June 2003, noted
R v Flattery (1877) 2 QBD 410, cited
R v Glattback [2004] QCA 356; CA No 53 of 2004, 1 October 2004, cited
R v Harkin (1989) 38 A Crim R 296, applied
R v Veltheim [1987] CCA 135; CA No 120 of 1987, 18 August 1987, discussed
R v Williams [1923] 1 KB 340, cited

Criminal Code 1899 (Qld), s 24, s 245, s 246, s 347, s 348,
s 349, s 352

Criminal Practice Rules 1999 (Qld), r 66(2)(b)

COUNSEL:

P J Davis for the appellant/respondent
C W Heaton for the respondent/appellant

SOLICITORS:

Russo Lawyers for the appellant/respondent
Director of…

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 BAS

Details

AGLC: R v BAS [2005] QCA 97
Case: [2005] QCA 97
Decision Date: 8 April 2005

CaseChat Overview and Summary

The appellant, identified as BAS, was convicted of multiple indecent dealing, sexual assault and rape counts. The crux of the dispute lies in the appellant's claim that the jury's verdict was unreasonable and insupportable, particularly given that the complainants had consented to the acts committed by the appellant, albeit that consent was obtained by fraud. The appellant argues that the jury's verdict was flawed as it did not properly consider the appellant's purpose for committing the acts, which was purportedly for therapeutic rather than self-gratification purposes.

The primary legal issue before the court was whether it was reasonably open to the jury to conclude that the appellant's purpose was for self-gratification, and whether the indecency of the acts could be determined by the appellant's purpose. Additionally, the court needed to consider whether the failure to direct the jury regarding the implied representations made by the appellant regarding his conduct could have affected the verdict. The court also had to determine if the sentence was manifestly insufficient, given the nature of the offences.

The court held that the appeal against the conviction was dismissed as the jury was reasonably entitled to conclude that the appellant's purpose was for self-gratification, given the nature of the acts and the appellant's conduct. The court further held that the indecency of the acts was not solely determined by the part of the subject's anatomy touched but also by the appellant's purpose in touching them. The court also found that the failure to direct the jury regarding the implied representations made by the appellant did not affect the verdict, as the defence counsel did not request particulars identifying such representations. Finally, the court found that the sentence was not manifestly insufficient.

The court dismissed the appeal and the application to increase the sentence. The appellant's conviction and sentence stand as originally determined.

Orders

Orders of the court

1. CA No 212 of 2004 dismissed

2. CA No 249 of 2004 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.

Citations

AGLC Citation

R v BAS [2005] QCA 97

Most Recent Citation

R v Rae [2008] QCA 385

Cases citing this decision · 13 of 13 shown

HES v The State of Western Australia
[2022] WASCA 151 Para 1

…uently, so the defence argued, there was no fraud. The Court of Appeal of Queensland dismissed the appellant's appeal against conviction. [7] R v BAS [2005] QCA 97.…
R v Davidson
[2019] QCA 120 Para 3

…nths. The Attorney-General unsuccessfully appealed against those sentences, but that is not to say that they were at the top of the range. [9][2005] QCA 97. [10]At [12].…
Panda v The State of Western Australia
[2017] WASCA 5 Para 8

…red to some decisions in other jurisdictions, namely Director of Public Prosecutions v Joseph [2001] VSCA 151; R v Moodley [2013] QCA 253 and R v BAS [2005] QCA 97. Each of those cases related to sex offending either by a medical practitioner or a person who practised natural or alternative medicine. However, th…
R v VAB
[2014] QDC 113 Para 1

…is proved that the complainant did not give voluntary agreement to or acquiescence in the acts which constitute each charge. [7] R v BAS [2005] QCA 97 at [51]…
R v Moodley
[2013] QCA 253 Para 1

…resent case. The applicant relied on a decision of the Victorian Court of Appeal, Director of Public Prosecutions v Joseph .[4] [1][2003] QCA 200. [2][2005] QCA 97. [3][2006] QCA 10. [4][2001] VSCA 151.…
R v Winchester
[2011] QCA 374

…considered Papadimitropoulos v The Queen (1957) 98 CLR 249; [1957] HCA 74, considered R v BAS [2005] QCA 97, considered R v Clarence [1886-90] All ER Rep 133; (1888) 22 QBD 23, considered R v Ford [2006] QCA 142, cited R v Kirkman (1987) 44 SASR 591, considered R v Lee (1950) 82 CLR 133; [1950] HCA 25, cited R v…
R v Jones
[2011] QCA 19 Para 1

…statement by Lee CJ in Harkin :[15] [15](1989) 38 A Crim R 296, decision of the Court of Appeal of New South Wales adopted in Queensland in R v BAS [2005] QCA 97 per Fryberg J at [16]-[17] with whom Davies and McPherson JJA agreed.…
R v Wai
[2010] QCA 67

…[10](1989) 38 A Crim R 296 at 301, approved in R v Bas [2005] QCA 97.…
R v Rae
[2008] QCA 385 Para 1

…here should have been directions that the acts had to be accompanied by an intention to gain sexual gratification was said to be derived from R v BAS [2005] QCA 97. That case was quite different from the present. Fryberg J, with whom Davies and McPherson JJA agreed, said at [12] that the circumstances of that ca…
BHP Coal Pty Ltd v O & K Orenstein & Koppel AG
[2008] QSC 141

…[2005] QCA 97 Australia and New Zealand Banking Group Ltd v Pan Foods Company Importers and Distributors Pty Ltd [1999] 1 VR 1 Australian Securities Ltd v Western Australian Insurance Co Ltd (1929) 29 SR (NSW) 571 Bachelor v Burke (1981) 148 CLR 448 Banco de Portugal v Waterlow [1932] AC 452 Batiste v State of Q…
Michael v The State of Western Australia
[2008] WASCA 66 Para 3

…The meaning of the words 'obtained by' was considered by the Queensland Court of Appeal in R v BAS [2005] QCA 97. Fryberg J (Davies JA concurring) said [98] that the question whether consent was obtained 'by' a representation involved an inquiry into whether there was evidence of a causal link between the repres…
Chief Executive Officer, Department for Child Protection v Grindrod (No 2)
[2008] WASCA 28

…rs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 Murphy & Murphy [2007] Fam CA 795 Neat Holdings v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 R v BAS [2005] QCA 97 R v Hillingdon London Borough Council; Ex p. Puhlhofer [1986] AC 484 R v Revesz (1996) 88 A Crim R 253 R v Tait (1979) 46 FLR 386 Re Bromfield SM; Ex p…
Trenevski v The Irish Restaurant and Bar Company Pty Ltd
[2006] QDC 7 Para 1

…nt of principle from Aboyne Pty Ltd v Dixon Homes Pty Ltd [1980] Qd R 142 per Kelly J. The Court of Appeal in Rochfort and Anor. v Habashy and Anor . [2005] QCA 97 has recently affirmed that principle.[para.4].…

View all 13 citing cases →

Cases cited in this decision · 8 of 8 shown

R v Glattback
[2004] QCA 356

…No 664 of 2003, 6 June 2003, noted R v Flattery (1877) 2 QBD 410, cited R v Glattback [2004] QCA 356; CA No 53 of 2004, 1 October 2004, cited R v Harkin (1989) 38 A Crim R 296, applied R v Veltheim [1987] CCA 135; CA No 120 of 1987, 18 August 1987, discussed R v Williams [1923] 1 KB 340, cited Criminal Code 1899…
Dhanhoa v The Queen
[2003] HCA 40

…f the parties’ relationship means that this appeal falls within that class described in the joint judgment of McHugh and Gummow JJ in Dhanhoa v R (2003) 199 ALR 547 at 555. Their Honours wrote there that when no redirection concerning evidence is sought at a criminal trial, and where a convicted person then seeks to…
R v Graham Williams
[2002] NSWCCA 458 Para 1

…ively punished by a sentence of three years and nine months with a non-parole period of two years. The court held the sentence was not excessive. [40][2002] NSWCCA 458; CCA No 60412 of 2002, 15 November 2002. [41][1998] VICSC 36; No 204 of 1997, 19 March 1998.…
Mackenzie v The Queen
[1996] HCA 35

…levant conviction will be set aside. It is impossible to state hard and fast rules. ‘It all depends upon the facts of the case’.” [33](1996) 190 CLR 348 at pp 366, 368.…
R v Shaw
[1993] QCA 459

…l to identify the evidence said to prove the threats or intimidation and that the complainant’s consent was obtained by means of it”.[31] [31][1993] QCA 459; CA No 117 of 1993, 10 November 1993.…
[1923] 1 KB 340
[1923] 1 KB 340

…v Veltheim [1987] CCA 135; CA No 120 of 1987, 18 August 1987, discussed R v Williams [1923] 1 KB 340, cited Criminal Code 1899 (Qld), s 24, s 245, s 246, s 347, s 348, s 349, s 352 Criminal Practice Rules 1999 (Qld), r 66(2)(b) COUNSEL: P J Davis for the appellant/respondent C W Heaton for the respondent/appellan…
(1877) 2 QBD 410
(1877) 2 QBD 410

…ient R v Austerberry , unreported, DC No 664 of 2003, 6 June 2003, noted R v Flattery (1877) 2 QBD 410, cited R v Glattback [2004] QCA 356; CA No 53 of 2004, 1 October 2004, cited R v Harkin (1989) 38 A Crim R 296, applied R v Veltheim [1987] CCA 135; CA No 120 of 1987, 18 August 1987, discussed R v Williams [1923]…
It is interesting to see that in R v Flattery
(1877) QBD 410 Para 1

…adopted by the parties at the trial and the case went to the jury on that basis. It is interesting to see that in R v Flattery (1877) QBD 410, 411, the charge against the accused there was formulated as “not believing that the advice he was about to give would be of any service to the prosecutrix, not intending…

Legislation cited in this decision · 1

Criminal Practice Rules 1999 (Qld)
66(2)(b) 2 mentions (from Para 1)

CITATION:	R v BAS [2005] QCA 97
PARTIES:	R v BAS (appellant) R v BAS (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 212 of 2004 CA No 249 of 2004 DC No 487 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction Sentence Appeal by A-G (Qld)
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	8 April 2005
DELIVERED AT:	Brisbane
HEARING DATE:	29 October 2004
JUDGES:	Davies and McPherson JJA and Fryberg J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. CA No 212 of 2004 dismissed 2. CA No 249 of 2004 dismissed
CATCHWORDS:	CRIMINAL LAW – Appeal and new trial and inquiry after conviction – Particular grounds – Unreasonable or insupportable verdict – Where appeal dismissed – Where appellant convicted of multiple indecent dealing, sexual assault and rape counts – Where all complainants consented to acts committed by appellant – Where consent obtained by fraud – Whether it was reasonably open to the jury to conclude the appellant’s purpose was for self gratification and not therapeutic purposes CRIMINAL LAW – Appeal and new trial and inquiry after conviction – Particular grounds – Unreasonable or insupportable verdicts – Where appeal dismissed – Indecent dealing – Where indecency arises not simply from the identity of the part of the subject’s anatomy touched, but also from the appellant’s purpose in touching them – Whether jury reasonably entitled to find indecency on the whole of the evidence CRIMINAL LAW – Appeal and new trial and inquiry after conviction – Objections and points not raised in court below – Misdirection and non-direction – Particular cases – Appellant made implied representations as to the purpose of his conduct – Where defence counsel made no requests for particulars identifying such representations – Where defence case accepted the complainants believed the appellant was acting for therapeutic purposes – Whether it was reasonably possible that failure to direct the jury in such circumstances may have affected the verdict CRIMINAL LAW – Appeal and new trial and inquiry after conviction – Appeal by Attorney-General or other Crown law officer – Applications to increase sentence – Offences against the person – Digital rape – Where sentence not manifestly insufficient R v Austerberry, unreported, DC No 664 of 2003, 6 June 2003, noted R v Flattery (1877) 2 QBD 410, cited R v Glattback [2004] QCA 356; CA No 53 of 2004, 1 October 2004, cited R v Harkin (1989) 38 A Crim R 296, applied R v Veltheim [1987] CCA 135; CA No 120 of 1987, 18 August 1987, discussed R v Williams [1923] 1 KB 340, cited Criminal Code 1899 (Qld), s 24, s 245, s 246, s 347, s 348, s 349, s 352 Criminal Practice Rules 1999 (Qld), r 66(2)(b)
COUNSEL:	P J Davis for the appellant/respondent C W Heaton for the respondent/appellant
SOLICITORS:	Russo Lawyers for the appellant/respondent Director of…