R v Bau - [2005] QCA 106

SUPREME COURT OF QUEENSLAND

CITATION:

R v BAU [2005] QCA 106

PARTIES:

R
v
BAU
(appellant)

FILE NO/S:

CA No 5 of 2005
DC No 448 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

15 April 2005

DELIVERED AT:

Brisbane

HEARING DATE:

14 March 2005

JUDGES:

McMurdo P, Jerrard JA and Cullinane J
Separate reasons for judgment of each member of the Court,
each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – where complainant found guilty after trial of one count and not guilty of one count of unlawful and indecent dealing with his nephew – where evidence included oral testimony of complainant, appellant and appellant's cousin – where evidence included pretext telephone conversation between complainant and appellant containing a statement against interest – where complainant's evidence as to count one and the circumstances of the preliminary complaint not supported by cousin's evidence – where no comparable evidence throwing doubt on count two – where possible motive of false complaint – where appellant contends that the jury could not be satisfied of appellant's guilt on count two on evidence presented – whether verdict of jury unsafe or unsatisfactory – whether appeal should be allowed

Criminal Code 1899 (Qld), s 688E(1)
Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A

Longman v The Queen (1989) 168 CLR 79, cited
M v The Queen (1994) 181 CLR 487, applied
R v Swaffield (1998) 192 CLR 159, cited

COUNSEL:

B M Murray for the appellant
R G Martin SC for the respondent

SOLICITORS:

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

McMURDO P: The appellant was charged with unlawfully and indecently dealing in 1986 with his nephew, who was then under 14 years, at a central Queensland town (count 1). He was also charged with indecently dealing with the same nephew in Brisbane in 1992 (count 2). He was found not guilty of count 1, but guilty of count 2 in the District Court at Cairns on 8 December 2004. He appeals against his conviction now only on the basis that the jury's verdict was unsafe and unsatisfactory, that is, that it was unreasonable or cannot be supported on the evidence.[1]
[1]Criminal Code, s 668E(1).

A consideration of this ground of appeal requires a review of the evidence in the case: M v The Queen.[2]
[2](1994) 181 CLR 487.

The complainant was born in 1977 and was about eight at the time of the first count and about 14 at the time of the second. The appellant, the brother of the complainant's mother, was about eight years older than the complainant. The complainant gave evidence of the two specific incidents constituting count 1 in central Queensland and count 2 in Brisbane. He…

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 Bau

Details

AGLC: R v Bau [2005] QCA 106
Case: [2005] QCA 106
Decision Date: 15 April 2005

CaseChat Overview and Summary

In the matter of R v Bau, the appellant was found guilty of one count of unlawful and indecent dealing with his nephew, but not guilty of another count by a jury in the County Court of Victoria. The appellant sought to appeal the conviction on the grounds that the jury's verdict was unreasonable and unsafe. The primary legal issue before the Court of Appeal was whether the jury's verdict on the guilty count was so unreasonable that it ought not to stand, given the evidence presented.

The Court of Appeal considered the evidence, including the testimony of the complainant, the appellant, and the appellant's cousin. The court noted that the complainant's evidence regarding the count for which the appellant was found guilty was not supported by the cousin's testimony, but there was no comparable evidence casting doubt on the second count for which the appellant was acquitted. The court also noted the possibility of a false complaint motivated by revenge. The appellant argued that the evidence was insufficient to convict him on the first count. However, the court held that the jury was entitled to believe the complainant's evidence and find the appellant guilty. The appeal was dismissed as the verdict was not unreasonable or unsatisfactory.

Orders

Orders of the court

Appeal 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 BAU [2005] QCA 106
PARTIES:	R v BAU (appellant)
FILE NO/S:	CA No 5 of 2005 DC No 448 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	15 April 2005
DELIVERED AT:	Brisbane
HEARING DATE:	14 March 2005
JUDGES:	McMurdo P, Jerrard JA and Cullinane J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – where complainant found guilty after trial of one count and not guilty of one count of unlawful and indecent dealing with his nephew – where evidence included oral testimony of complainant, appellant and appellant's cousin – where evidence included pretext telephone conversation between complainant and appellant containing a statement against interest – where complainant's evidence as to count one and the circumstances of the preliminary complaint not supported by cousin's evidence – where no comparable evidence throwing doubt on count two – where possible motive of false complaint – where appellant contends that the jury could not be satisfied of appellant's guilt on count two on evidence presented – whether verdict of jury unsafe or unsatisfactory – whether appeal should be allowed Criminal Code 1899 (Qld), s 688E(1) Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A Longman v The Queen (1989) 168 CLR 79, cited M v The Queen (1994) 181 CLR 487, applied R v Swaffield (1998) 192 CLR 159, cited
COUNSEL:	B M Murray for the appellant R G Martin SC for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent