R v Bav - [2005] QCA 309

SUPREME COURT OF QUEENSLAND

CITATION:

R v BAV [2005] QCA 309

PARTIES:

R
v
BAV
(appellant/applicant)

FILE NO/S:

CA No 44 of 2005
DC No 4 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court

DELIVERED ON:

26 August 2005

DELIVERED AT:

Brisbane

HEARING DATE:

16 August 2005

JUDGES:

McMurdo P, Keane JA and Wilson 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 dismissed

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE APPEAL DISMISSED - where appellant was convicted after trial by jury of three counts of indecent treatment of a child under 16, one count of assault occasioning bodily harm and one count of rape - where appellant appealed against the rape conviction on the basis that the evidence of penetration was equivocal - where the complainant, who was a child at the time of the alleged rape, gave evidence that the appellant had lain on top of her, moved up and down and that she had felt sharp pain inside - where the complainant expressed some doubt as to whether penetration occurred - whether the trial judge gave appropriate directions to the jury as to how to deal with the evidence of penetration - whether it was open to the jury, having regard to the whole of the evidence, to conclude that penetration did occur

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 - where there was evidence that the complainant who had alleged that she had been raped by the appellant was "high" at the time she made her first complaint about the rape taking place - where there was evidence that the complainant had a history of substance abuse - whether the trial judge should have given a direction of the type described in Bromley v The Queen (1986) 161 CLR 315

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 - where the appellant submitted that the trial judge had not drawn a sufficient distinction between evidence which corroborated the account of the complainant in relation to the charges of indecent dealing and the account of the complaint in relation to the charge of rape when directing the jury - whether adequate directions were given as to the weight the jury might place on the evidence that corroborated the complainant's account

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL -…

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 Bav

Details

AGLC: R v Bav [2005] QCA 309
Case: [2005] QCA 309
Decision Date: 26 August 2005

CaseChat Overview and Summary

The appellant was convicted of several offences including rape, indecent treatment of a child under 16, and assault occasioning bodily harm. The case came before the court on appeal against the conviction of rape, on the basis that the evidence of penetration was equivocal. The court was also asked to consider whether the trial judge gave appropriate directions to the jury, and whether the jury could conclude that penetration did occur. The appellant further argued that the trial judge should have given a direction of the type described in Bromley v The Queen (1986) 161 CLR 315, and that the judge had not drawn a sufficient distinction between evidence which corroborated the account of the complainant in relation to the charges of indecent dealing and the account of the complaint in relation to the charge of rape when directing the jury.

The court considered the evidence of the complainant, who gave evidence that the appellant had lain on top of her, moved up and down, and that she had felt sharp pain inside. However, the complainant expressed some doubt as to whether penetration occurred. The court considered the trial judge's directions to the jury, and whether they were adequate in light of the equivocal evidence. The court also considered whether the trial judge should have given a direction of the type described in Bromley v The Queen (1986) 161 CLR 315, and whether the judge had drawn a sufficient distinction between evidence which corroborated the account of the complainant in relation to the charges of indecent dealing and the account of the complaint in relation to the charge of rape when directing the jury.

The court found that the trial judge had given appropriate directions to the jury, and that it was open to the jury, having regard to the whole of the evidence, to conclude that penetration did occur. The court also found that there were no grounds for interference with the verdict on the basis of any misdirection or non-direction by the trial judge. The court dismissed the appeal against conviction, and the application for leave to appeal against sentence. The court found that the sentence imposed on the appellant was not manifestly excessive, given the nature and circumstances of the offences and the appellant's criminal history.

The final orders of the court were that the appeal against conviction be dismissed, and that the application for leave to appeal against sentence be dismissed. The appellant's conviction and sentence were therefore upheld.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence 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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v BAV [2005] QCA 309
PARTIES:	R v BAV (appellant/applicant)
FILE NO/S:	CA No 44 of 2005 DC No 4 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court
DELIVERED ON:	26 August 2005
DELIVERED AT:	Brisbane
HEARING DATE:	16 August 2005
JUDGES:	McMurdo P, Keane JA and Wilson 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 dismissed
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE APPEAL DISMISSED - where appellant was convicted after trial by jury of three counts of indecent treatment of a child under 16, one count of assault occasioning bodily harm and one count of rape - where appellant appealed against the rape conviction on the basis that the evidence of penetration was equivocal - where the complainant, who was a child at the time of the alleged rape, gave evidence that the appellant had lain on top of her, moved up and down and that she had felt sharp pain inside - where the complainant expressed some doubt as to whether penetration occurred - whether the trial judge gave appropriate directions to the jury as to how to deal with the evidence of penetration - whether it was open to the jury, having regard to the whole of the evidence, to conclude that penetration did occur 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 - where there was evidence that the complainant who had alleged that she had been raped by the appellant was "high" at the time she made her first complaint about the rape taking place - where there was evidence that the complainant had a history of substance abuse - whether the trial judge should have given a direction of the type described in Bromley v The Queen (1986) 161 CLR 315 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 - where the appellant submitted that the trial judge had not drawn a sufficient distinction between evidence which corroborated the account of the complainant in relation to the charges of indecent dealing and the account of the complaint in relation to the charge of rape when directing the jury - whether adequate directions were given as to the weight the jury might place on the evidence that corroborated the complainant's account CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL -…