R v Bauer - [2005] QCA 305

SUPREME COURT OF QUEENSLAND

CITATION:

R v Bauer [2005] QCA 305

PARTIES:

R
v
BAUER, Dermont Charles
(appellant/applicant)

FILE NO:

CA No 37 of 2005  DC No 26 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Mackay

DELIVERED ON:

23 August 2005

DELIVERED AT:

Brisbane

HEARING DATE:

4 August 2005

JUDGES:

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

ORDERS:

1. Appeal against conviction dismissed  2. Application for leave to appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW – JURISDICTION PRACTICE AND PROCEDURE – INCONSISTENT AMBIGUOUS AND MEANINGLESS VERDICTS – ALTERNATIVE VERDICTS – where appellant charged with 12 counts of indecent dealing – where jury convicted appellant of some counts and acquitted him of others – where appellant submitted jury verdicts explicable only as a product of compromise – whether inconsistency exists and is such as to require intervention by appellate court

CRIMINAL LAW – EVIDENCE – EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS – EVIDENCE OF SEXUAL EXPERIENCE, REPUTATION AND MORALITY – where application made under s 4 Criminal Law (Sexual Offences) Act 1978 for leave to cross-examine complainant as to complaint of a sexual nature against a man other than the accused – whether application for leave restricted to sexual offences involving consent – whether trial judge erred in refusing leave

Crimes Act 1900 (NSW), s 409B Criminal Law (Sexual Offences) Act1978 (Qld), s 4

HG v The Queen (1999) 197 CLR 414, followed MacKenzie v The Queen (1996) 190 CLR 348, applied R v G (1997) 42 NSWLR 451, followed

COUNSEL:

A J Glynn SC for the appellant/applicant
M J Copley for the respondent

SOLICITORS:

Macrossan & Amiet Solicitors for the appellant/applicant
Director of Public Prosecutions (Queensland) for the respondent

McPHERSON JA: It was submitted by Mr Glynn SC for the appellant that, in restricting or excluding evidence or cross-examination of a complainant, s 4 of the Criminal Law (Sexual Offences) Act 1978 was directed only to sexual offences of which an element is the absence of consent on the part of the complainant. Rape is the most obvious example. Since the offences which the appellant was charged with committing were acts of indecent dealing against a child, as to which the consent of the complainant is not an element, s 4 of the Act could, it was said, not have been intended to extend to it.

A degree of plausibility is lent to the submission by the fact that rules 2, 4 and 5 of s 4 speak of “sexual activity with a person”, or of the complainant “having engaged in” such activity or activities with a person. It would not be an ordinary use of language to say of the victim of a rape, or of an indecent dealing, that she had engaged in sexual activity with the perpetrator of such an act. The primary obstacle…

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 Bauer

Details

AGLC: R v Bauer [2005] QCA 305
Case: [2005] QCA 305
Decision Date: 23 August 2005

CaseChat Overview and Summary

In the matter of R v Bauer, the appellant was charged with twelve counts of indecent dealing. The jury returned a verdict that was inconsistent and ambiguous, convicting the appellant of some counts and acquitting him of others. The appellant submitted that the jury's verdicts were explicable only as a product of compromise and that the inconsistency required intervention by the appellate court. The appeal against the conviction was dismissed, and the application for leave to appeal against the sentence was also dismissed.

The legal issues the court had to decide were whether the jury's verdicts were inconsistent and ambiguous, and whether the trial judge erred in refusing leave to cross-examine the complainant about a complaint of a sexual nature against a man other than the appellant. The court found that the jury's verdicts were explicable and that there was no inconsistency that required intervention by the appellate court. The court also found that the trial judge did not err in refusing leave to cross-examine the complainant about a complaint of a sexual nature against a man other than the appellant.

The court's reasoning was that the jury's verdicts were explicable and that there was no inconsistency that required intervention by the appellate court. The court held that the jury's verdicts were explicable because the jury had been instructed to consider each count separately and to convict the appellant if they were satisfied beyond reasonable doubt that he had committed the offence. The court also held that the trial judge did not err in refusing leave to cross-examine the complainant about a complaint of a sexual nature against a man other than the appellant because the application for leave was restricted to sexual offences involving consent, and the complaint did not involve consent.

The final orders of the court were to dismiss the appeal against the conviction and the application for leave to appeal against the sentence. The court found that the jury's verdicts were explicable and that there was no inconsistency that required intervention by the appellate court. The court also found that the trial judge did not err in refusing leave to cross-examine the complainant about a complaint of a sexual nature against a man other than the appellant.

Orders

Orders of the court

1. Appeal against conviction dismissed 2. Application for leave to appeal against sentence dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Bauer [2005] QCA 305
PARTIES:	R v BAUER, Dermont Charles (appellant/applicant)
FILE NO:	CA No 37 of 2005 DC No 26 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Mackay
DELIVERED ON:	23 August 2005
DELIVERED AT:	Brisbane
HEARING DATE:	4 August 2005
JUDGES:	McPherson and Williams JJA and Wilson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal against conviction dismissed 2. Application for leave to appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW – JURISDICTION PRACTICE AND PROCEDURE – INCONSISTENT AMBIGUOUS AND MEANINGLESS VERDICTS – ALTERNATIVE VERDICTS – where appellant charged with 12 counts of indecent dealing – where jury convicted appellant of some counts and acquitted him of others – where appellant submitted jury verdicts explicable only as a product of compromise – whether inconsistency exists and is such as to require intervention by appellate court CRIMINAL LAW – EVIDENCE – EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS – EVIDENCE OF SEXUAL EXPERIENCE, REPUTATION AND MORALITY – where application made under s 4 Criminal Law (Sexual Offences) Act 1978 for leave to cross-examine complainant as to complaint of a sexual nature against a man other than the accused – whether application for leave restricted to sexual offences involving consent – whether trial judge erred in refusing leave Crimes Act 1900 (NSW), s 409B Criminal Law (Sexual Offences) Act1978 (Qld), s 4 HG v The Queen (1999) 197 CLR 414, followed MacKenzie v The Queen (1996) 190 CLR 348, applied R v G (1997) 42 NSWLR 451, followed
COUNSEL:	A J Glynn SC for the appellant/applicant M J Copley for the respondent
SOLICITORS:	Macrossan & Amiet Solicitors for the appellant/applicant Director of Public Prosecutions (Queensland) for the respondent