R v BAT

Case [2005] QCA 82 1 April 2005

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SUPREME COURT OF QUEENSLAND

CITATION:

R v BAT [2005] QCA 82

PARTIES:

R
v
BAT
(appellant/applicant)

FILE NO/S:

CA No 415 of 2004
DC No 329 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED ON:

1 April 2005

DELIVERED AT:

Brisbane

HEARING DATE:

8 March 2005

JUDGES:

McPherson and Keane JJA and Douglas 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 refused

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE APPEAL DISMISSED - appellant convicted of indecent treatment of a child under 16 years under care, carnal knowledge of a child under care and maintaining a sexual relationship with a child with a circumstance of aggravation - inconsistencies and discrepancies in complainant's evidence - where pretext telephone call between appellant and complainant provided support for complainant's evidence - whether verdict could not be supported by the evidence

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - WHERE GROUNDS FOR INTERFERENCE WITH VERDICT - PARTICULAR CASES - WHERE APPEAL DISMISSED - delay of eight years between first offence and trial - defence counsel at trial said before summing up that Longman warning unnecessary - whether Longman warning required - whether miscarriage of justice due to failure to give Longman warning

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE - OTHER IRREGULARITIES - where jury allowed to take exhibit which was letter written by complainant outlining various offences into the jury room - where no objection to exhibit being taken to the jury room - whether exhibit should have been withheld from jury

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AGAINST SENTENCE - applicant sentenced to effective term of six years imprisonment - whether sentence was manifestly excessive

Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A(4)
Evidence Act 1977 (Qld), s 99

Crampton v The Queen (2000) 206 CLR 161, considered
Doggett v The Queen (2001) 208 CLR 343, distinguished
Howe v The Queen (1981) 55 ALJR 5, cited
Longman v The Queen (1989) 168 CLR 79, distinguished
M v The Queen (1994) 181 CLR 487, considered
R v BWT (2002) 54 NSWLR 241, discussed
R v C [2002] QCA 166; CA No 267 of 2001, 14 May 2002, cited
R v FI [2004] QCA 400; CA No 204 of 2004, 29 October 2004, cited

COUNSEL:

M J Byrne QC for appellant/applicant
C W Heaton for respondent

SOLICITORS:

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

McPHERSON…

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 BAT

Details

AGLC: R v BAT [2005] QCA 82
Case: [2005] QCA 82
Decision Date: 1 April 2005

CaseChat Overview and Summary

The appellant, BAT, appealed against his conviction for indecent treatment of a child under 16 years under his care, carnal knowledge of a child under his care, and maintaining a sexual relationship with a child with a circumstance of aggravation. The appeal was heard by the Court of Appeal, which also considered an application for leave to appeal against the sentence. The trial had been delayed by eight years, and there were inconsistencies in the complainant's evidence. The appellant also argued that the trial judge should have given a Longman warning to the jury regarding the delay, and that the jury should not have been allowed to take a letter from the complainant into the jury room.

The court considered whether the verdict was unreasonable or insupportable, given the inconsistencies in the complainant's evidence. The court also considered whether the trial judge should have given a Longman warning to the jury regarding the delay between the first offence and the trial. The court examined the relevance of the Longman warning in light of the defence counsel's comments before summing up, and whether the failure to give such a warning resulted in a miscarriage of justice. Additionally, the court examined whether the exhibit, a letter from the complainant outlining various offences, should have been withheld from the jury.

The Court of Appeal found that the inconsistencies and discrepancies in the complainant's evidence were insufficient to conclude that the verdict was unreasonable or insupportable. The court also found that the trial judge's failure to give a Longman warning did not result in a miscarriage of justice, given the comments made by defence counsel. The court held that the exhibit, the letter from the complainant, should not have been taken into the jury room, but this did not affect the safety of the verdict. The appeal against the conviction was dismissed. The application for leave to appeal against the sentence was also refused.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence refused

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.

Actions

Citations

R v BAT [2005] QCA 82

Most Recent Citation

R v HAN [2008] QCA 106

Cases Citing This Decision

R v Mdi [2020] QCA 244
Citation 1 (Para 2)

…evidence did not relieve the judge of the requirement to provide a Longman direction.[2] [2] R v C [2002] QCA 166; R v FI [2004] QCA 400; R v BAT [2005] QCA 82.…
R v FAK [2016] QCA 306
Citation 2 (Para 33)

…sentence open on the authorities and a head sentence of seven years was manifestly excessive in the circumstances.” [141][2005] QCA 13. [142][2005] QCA 82. [143][2008] QCA 25. [144] HAN at [22]-[23].…
R v WBA [2015] QCA 21
Citation 3 (Para 17)

…he complainant and enjoyed the advantage of observing her reactions and responses when tested with these inconsistencies and discrepancies.” [4][2005] QCA 82 at [28].…
R v Rak [2012] QCA 26
Citation 4 (Para 1)

…In R v BAT [29] Keane JA (with whom McPherson JA and Douglas J agreed) said[30]: [29][2005] QCA 82. [30] R v BAT [2005] QCA 82 at [27] & [28].…
R v BBS [2009] QCA 205
Citation 5 (Para 1)

…R v T (2000) 113 A Crim R 439; and for the applicant, in addition, R v HAN [2008] QCA 106, R v GY [2007] QCA 103, R v MAH [2005] QCA 13 and R v BAT [2005] QCA 82. Mr Hoare submitted that a sentence of four and a half years would have been appropriate, allowing for the absence of rape or carnal knowledge.…
R v CAM [2009] QCA 44
Citation 6 (Para 1)

…Mr Kissick, who appeared for the applicant, relied particularly on the cases of R v HAN [2008] QCA 106, R v BAT [2005] QCA 82 and R v SAU [2006] QCA 192.…
Hunt v The State of Western Australia [No 2] [2008] WASCA 210
Citation 7 (Para 9)

…To similar effect was the conclusion of the Supreme Court of Queensland in R v BAT [2005] QCA 82. In that case, Keane JA, in reasons with which McPherson JA and Douglas J concurred, concluded: This Court must, therefore, hold that the duty of a trial judge is relevantly that, 'in a case of long delay, a warning…
R v HAN [2008] QCA 106
Citation 8 (Para 1)

…In R v BAT [2005] QCA 82 an effective term of six years imprisonment was imposed with respect to a maintaining charge which involved indecent dealing and unlawful carnal knowledge and many acts of sexual intercourse over a three year period when the complainant was between the ages of 12 and 15. The sentence was…

See all citing cases →

Cases Cited

Howe v The Queen [2016] NZHC 926
Citation 1

…Qld), s 4A(4) Evidence Act 1977 (Qld), s 99 Crampton v The Queen (2000) 206 CLR 161, considered Doggett v The Queen (2001) 208 CLR 343, distinguished Howe v The Queen (1981) 55 ALJR 5, cited Longman v The Queen (1989) 168 CLR 79, distinguished M v The Queen (1994) 181 CLR 487, considered R v BWT (2002) 54 NSWLR 241, discu…
R v FI [2004] QCA 400
Citation 2 (Para 1)

…es when tested with these inconsistencies and discrepancies.[4] [3](1994) 181 CLR 487 at 494. [4]See R v Crosby [2002] QCA 213 at [16] - [21]; R v F1 [2004] QCA 400 at [10] - [19].…
R v Crosby [2002] QCA 213
Citation 3 (Para 1)

…of observing her reactions and responses when tested with these inconsistencies and discrepancies.[4] [3](1994) 181 CLR 487 at 494. [4]See R v Crosby [2002] QCA 213 at [16] - [21]; R v F1 [2004] QCA 400 at [10] - [19].…
R v C [2002] QCA 166
Citation 4 (Para 1)

…Court in R v C [13] and, more recently, in R v FI .[14] In the latter case, Davies JA, with whom de Jersey CJ and Chesterman J agreed, said:[15] [13][2002] QCA 166. [14][2004] QCA 400. [15][2004] QCA 400 at [24] - [26].…
R v BWT [2002] NSWCCA 60
Citation 5 (Para 1)

…e I wish to discuss arises from a passage of the decision of the New South Wales Court of Appeal in R v BWT. [29] [28](1989) 168 CLR 179 at 91. [29](2002) 54 NSWLR 241.…
Doggett v the Queen [2001] HCA 46
Citation 6 (Para 1)

…tted with any force that her evidence was unreliable on that ground alone.[1] [1]Cf Longman v The Queen (1989) 168 CLR 79 at 101; Doggett v The Queen (2001) 208 CLR 343 at 376 - 377 [124].…
Re Ruddock; Ex parte Reyes [2000] HCA 66
Citation 7 (Para 1)

…mments have affected the fairness of the appellant’s trial detrimentally. [30](2001) 208 CLR 343 at 368 [94]. [31] Crampton v The Queen (2000) 206 CLR 161, 181 at [45]; see also Doggett at [51]-[52].…
R v R [1998] QCA 268
Citation 8 (Para 1)

…n identified for suspending any part of that sentence. [27]See R v C [1993] QCA 344; CA No 153 of 1993, 20 September 1993. In the later case of R v R [1998] QCA 268; CA No 152 of 1998, 24 July 1998, a term of five and a half years was held to be appropriate in relation to an offender for whom seven years was the…
Vincent Raymond Jones v The Queen [1997] HCA 56
Citation 9 (Para 1)

…levant sense. For the same reason, the appellant's reliance on Crofts [22] and Jones [23] appears to me to be inapposite. [22](1996) 186 CLR 427. [23](1997) 191 CLR 439.…
Jones v The Queen [1997] HCA 12
Citation 10

…d offence and complaint to police was approximately six years, although offences were alleged to have continued until six months before complaint. In Jones v The Queen (1997) 191 CLR 439 the delay was more than four years.). On the face of things, therefore, a 'full' Longman warning was required in this case."…
Crofts v The Queen [1996] HCA 22
Citation 11

…nings have been required in this and other Australian courts in circumstances in which the delay was much shorter than it was in the present case (In Crofts v The Queen (1996) 186 CLR 427 the delay between the first alleged offence and complaint to police was approximately six years, although offences were alleged to have c…
M v the Queen [1994] HCA 63
Citation 12 (Para 1)

…as not shaken in cross-examination, and the complainant's evidence was also undermined by the evidence of a medical practitioner who examined her. [2](1994) 181 CLR 487.…
Longman v The Queen [1989] HCA 60
Citation 13 (Para 1)

…of which she complained that it could be submitted with any force that her evidence was unreliable on that ground alone.[1] [1]Cf Longman v The Queen (1989) 168 CLR 79 at 101; Doggett v The Queen (2001) 208 CLR 343 at 376 - 377 [124].…
Jago v District Court (NSW) [1989] HCA 46
Citation 14

…n of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay (see Jago v District Court (NSW) ((1989) 168 CLR 23 at pp 31 - 32, 42 - 44, 56 - 57, 71 - 72)) and it was imperative that a warning be given to the jury. The jury should have been told that, as the evi…
Wyong Shire Council v Shirt [1980] HCA 112
Citation 15

…ntext, trifling; and secondly , that the risk of relevant forensic disadvantage would be seen by any reasonable mind as, (to borrow from Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47), ‘far-fetched or fanciful’.”…
Wyong Shire Council v Shirt [1980] HCA 12
Citation 16

…y , that the risk of relevant forensic disadvantage would be seen by any reasonable mind as, (to borrow from Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47), ‘far-fetched or fanciful’.”…
R v C [1993] QCA 344
Citation 17 (Para 1)

…s, the sentence imposed cannot be said to be excessive;[27] nor is any good reason identified for suspending any part of that sentence. [27]See R v C [1993] QCA 344; CA No 153 of 1993, 20 September 1993. In the later case of R v R [1998] QCA 268; CA No 152 of 1998, 24 July 1998, a term of five and a half years wa…
Crampton v The Queen [2000] HCA 6023
Citation 18

…"[51] Fifthly, the problems with which Longman is intended to deal are not confined to difficulties of recollection that the passage of time might cause for an accused. Of equal, and in some cases of which this might be one, or more importance is the denial by the effluxion of time, to an accused of…
[1987] AC 128 [1987] AC 128
Citation 19

…tor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them: see Reg v Spencer ([1987] AC 128 at p 141). That factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there b…

Legislation Cited

Criminal Law (Sexual Offences) Act 1978 (Qld) 4A(4)
2 mentions (from Para 1)
Evidence Act 1977 (Qld) 99
2 mentions (from Para 1)

CITATION:	R v BAT [2005] QCA 82
PARTIES:	R v BAT (appellant/applicant)
FILE NO/S:	CA No 415 of 2004 DC No 329 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Beenleigh
DELIVERED ON:	1 April 2005
DELIVERED AT:	Brisbane
HEARING DATE:	8 March 2005
JUDGES:	McPherson and Keane JJA and Douglas 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 refused
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE APPEAL DISMISSED - appellant convicted of indecent treatment of a child under 16 years under care, carnal knowledge of a child under care and maintaining a sexual relationship with a child with a circumstance of aggravation - inconsistencies and discrepancies in complainant's evidence - where pretext telephone call between appellant and complainant provided support for complainant's evidence - whether verdict could not be supported by the evidence CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - WHERE GROUNDS FOR INTERFERENCE WITH VERDICT - PARTICULAR CASES - WHERE APPEAL DISMISSED - delay of eight years between first offence and trial - defence counsel at trial said before summing up that Longman warning unnecessary - whether Longman warning required - whether miscarriage of justice due to failure to give Longman warning CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE - OTHER IRREGULARITIES - where jury allowed to take exhibit which was letter written by complainant outlining various offences into the jury room - where no objection to exhibit being taken to the jury room - whether exhibit should have been withheld from jury CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AGAINST SENTENCE - applicant sentenced to effective term of six years imprisonment - whether sentence was manifestly excessive Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A(4) Evidence Act 1977 (Qld), s 99 Crampton v The Queen (2000) 206 CLR 161, considered Doggett v The Queen (2001) 208 CLR 343, distinguished Howe v The Queen (1981) 55 ALJR 5, cited Longman v The Queen (1989) 168 CLR 79, distinguished M v The Queen (1994) 181 CLR 487, considered R v BWT (2002) 54 NSWLR 241, discussed R v C [2002] QCA 166; CA No 267 of 2001, 14 May 2002, cited R v FI [2004] QCA 400; CA No 204 of 2004, 29 October 2004, cited
COUNSEL:	M J Byrne QC for appellant/applicant C W Heaton for respondent
SOLICITORS:	Legal Aid Queensland for appellant/applicant Director of Public Prosecutions (Queensland) for respondent